Posted Feb., 2008 Kurt R. Nilson, Esq.          |            CLICK HERE FOR MORE ARTICLES

Many people believe that they can write (or type) their final wishes on any sheet of paper and then have that paper notarized to ensure that they have a legally valid will.  This belief is simply incorrect.  Notarization does not affect the validity of any will and does not provide any assurance of legality.  In fact, notarization does not offer any additional assurance of legality to a will that has been properly drafted by an attorney.

Notarization provides an official verification of the authenticity of a signature applied to a document.  A notary public is neither required, nor permitted to review the contents of a document and provide an opinion of its legal validity. 

The notary's duty is limited to verifying the signature written on the document.  In fulfillment of this duty, the notary public either witnesses the actual act of placing the signature on the document or accepts the signer's statement that the signature already present on a document is personal and authentic.  If satisfied that signer's identity is also the same as that of the person known by the written name, the notary places his or her official seal and personal signature to the document as conclusive evidence of authenticity.  (A notary may also accept a third party's statement that the signature on a document is authentic, but this is not used in practice as frequently as the previously mentioned methods.) 

While it is true that specific legal documents are not effective without notarization, merely having a document notarized does not provide any guarantee that the document contains any legally valid instructions.

For instance, real estate deeds are the most commonly recognized documents that must be notarized in order to become legally effective.  As deeds are so familiar, they will be used to illustrate this difference.  However, the basic principles shown below are not limited to deeds.

Example: Legally Ineffective Without Notarization

Through their attorney, George and Louise make a deed transferring their lot located at East Side Estates to their son Lionel.  The deed has been properly signed by George and Louise, correctly describes their property, and contains every other formality required by the state where the property is located.  Although this deed satisfies all other requirements for legal validity, without being properly notarized the deed cannot transfer ownership.  Even if Lionel has already paid for the property, the deed cannot be recorded without notarization and ownership will remain with George and Louise.

Example: Legally Ineffective With Notarization

Herman and Lilly own lot 1313 of Mockingbird Lane Estates and wish to transfer this property to their son Edward.  Through their attorney, they make a deed to transfer this real estate.  The deed has been properly signed by both of them, contains all other formalities required by the state where the property is located, and is properly notarized.  However, the legal description of the property written in the deed incorrectly (and unintentionally) identifies lot 1318.

Despite the fact that Herman and Lilly had this deed notarized it does not fulfill their sole intent in creating the document, because it does not transfer the intended property.  Even though the deed is legally ineffective as to the intended purpose, the notarization is still accurate because it serves the purpose of verifying the signatures. 

In other words, any person can take that deed and know for certain that the signatures of Herman and Lilly were actually made by Herman and Lilly, but no one can take that deed and use it to transfer ownership of Lot 1313 to Edward.  In fact, unless Herman and Lilly also own Lot 1318 this deed is completely ineffective for the current transfer of any property, but has still been correctly notarized.

Hand-Written and Properly Notarized Wills

Consider a hand-written, personally made document that reads something as simple as: 

"I, Steven Douglas, give all of my property to my son Robby and his present wife Katie.  If they are not living, I give all of my property to their children, equally." 

Just like any other document, nothing prevents this sheet of paper from being notarized once it is signed.  However, just like any other document, its notarization does not provide any assurance that it contains legally valid instructions. 

More importantly, even when a document like this does contain legally valid instructions,  notarization does not provide any assurance that those instructions meet the intended purpose.

For example, who receives Steven's property if Katie isn't living at the time of Steven's death?  Although Steven may intend for his son Robby to take his property if Katie is not living, this will literally instructs that both of them must survive in order for either of them to receive any property by giving everything to their children if "they" are not living.  Steven's will may easily be interpreted to require all of his property to be given to Robby and Katie's children if both of them are not living.

Another potential problem with this seemingly simple language can arise if Robby has children with anyone other than Katie.  Suppose that Robby remarries after Steven makes this will.  If Robby has children with his new wife and, as is very common, Steven neglects to update this document, Steven's property must be given to "their" (Robby and Katie) children.  Even though most people prefer to have all of their grandchildren share in the estate, Steven's document does not contemplate any children whose parents are not Robby and Katie.

Additional problems are present with even this simple, two sentence, hand-made will, such as whether Katie receives any property if her and Robby are divorced.  Although many people may consider these risks minimal enough to disregard, most people also recognize that the potential for disagreement is greatly increased in every situation where money is involved.  Even close members will argue over money (perhaps even more often than strangers). 

As shown, it is not recommended that any person rely solely upon notarization as an assurance that they have expressed their final wishes by a legal document or that those wishes are properly expressed.