A client requests a Notary Public to perform a proof of execution by subscribing witness for a will. The subscribing witness presents a document and states under oath that they witnessed the testator sign the will. The Notary observes that the will does not contain an attestation clause. What is the Notary's appropriate action?
- AInstruct the subscribing witness to add an attestation clause to the will.
- BProceed with the proof of execution, as the witness's sworn testimony is sufficient.
- CRefuse to perform the proof of execution because the attestation clause is missing.
- DPerform an acknowledgment instead, as it does not require an attestation clause.
Show answer & explanationAnswer & explanation
Correct answer: C. Refuse to perform the proof of execution because the attestation clause is missing.
A proof of execution by subscribing witness requires the document to have an attestation clause, which is a statement signed by the witnesses affirming the validity of the document's execution. Without this clause, the document is not suitable for a proof of execution by subscribing witness under California Notary law. A Notary cannot add or instruct others to add content to a document.
Why the other options are wrong
- A. Notaries are prohibited from altering documents or advising on their legality or content.
- B. The witness's sworn testimony is part of the process, but the document itself must meet the statutory requirement of having an attestation clause.
- D. An acknowledgment is a different notarial act and cannot be substituted, especially if the signer is not present.
Proof of Execution - Attestation Clause
For a Notary Public to perform a proof of execution by subscribing witness in California, the document must contain an attestation clause, which is a declaration by the witnesses affirming the proper execution of the document.
- Required for proof of execution by subscribing witness.
- Clause signed by original witnesses.
- Notaries cannot add or advise on document content.
Memory trick: A 'Proof' needs a 'Witness' and a 'Clause' to be true.