ANZCN Practice Note – International Wills

The Australian and New Zealand College of Notaries has circulated a Practice Note concerning the execution of notarial certificates for International Wills and Testaments. The Note, which was prepared by Prof. Peter Zablud, explains that on 10 March of this year, the Convention Providing a Uniform Law on the Form of an International Will (Washington, D.C., 1973) has entered into force in Australia.

New South Wales has enacted legislation, namely the Succession Amendment (International Wills) Act 2012 (NSW) which gives effect to the Convention‘s operative provisions. The Annex to the Convention – which outlines the procedures for the drafting and execution of an international will – has therefore  been incorporated into the law of NSW. The form of notarial certification has therefore been established under the present regime.

Prof. Zablud notes that the Convention does not aim to harmonize the laws relating to the drafting and execution of international wills, rather it seeks to provide “an additional form […] which if employed, would dispense to some extent with the search for the applicable law” (Preamble to the Convention). The Convention‘s Explanatory Note reflects this purpose, that the new process and form “simply proposes, alongside and in addition to the traditional forms, another form which it is hoped practice will bring into use mainly but not exclusively when in the circumstances a will has some international characteristics” (per Jeab-Pierre Plantard, Rapporteur).

The international characteristics contemplated in the Explanatory Note include: the fact that the will is made in a jurisdiction which is not the nationality of the person signing the will or his domicile or place of residence; the fact that some of the property subject to the operations of the will are located in different jurisdictions; the fact that some of the beneficiaries under the will are located in other jurisdictions other than the one in which the will is made.

The International Will will have to aspects: the first is the will itself, and the second is the notarial certificate which is in the form or substantively in the form of the template established under the state law (Prof. Zablud notes however that under the new law, the certificate is to be executed by an “authorised person” and that this can be a solicitor entitled to practice law in the state as well as a Notary Public).

Other procedural and legal matters are outlined in the Practice Note. Individuals who are seeking to make or execute an International Will are urged to seek professional assistance in relation to the proper form and procedure. Contact us for more information as to how we can assist.

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

If you require an international will notarised by a Sydney Public Notary, we may be able to come to you if you are located in the Northern Sydney region or Central Business District and surrounds. For more notarial service locations, see our Availability page. Be sure that all parties have at least two forms of photo identification available so that the notarial act can be applied to the international will. An international will can be certified by a Notary Public in North Sydney, Chatswood, Lane Cove, Artarmon, St Leonards, Crows Nest, Roseville, and other suburbs. For more information, contact us for a quote via the email form on this webpage or call us on the phone number provided.

ANZCN Practice Note – Record Keeping Guidelines

The Australian and New Zealand College of Notaries has issued a Practice Note concerning the minimum requirements for the notarial practice in relation to the keeping of records. The Practice Note, which has been circulated to members of the College today, states that the following matters should be retained by Notaries Public:

  • The date that the notarial service was offered to the client;
  • The name and address of the client to whom the notarial service is being provided;
  • The particulars of the service, described in concise terms;
  • The manner in which the client was identified by the notary, including the identification particulars;
  • In the event that the client was acting in a representative capacity (eg. if the client was a corporate entity and the person giving instructions to the notary was a director of that company) then evidence that establishes that the person was legitimately acting in his purported representative capacity must also be recorded;
  • The basis upon which an original document was certified;
  • Any unique number (such as an index number or serial number) of any document that was connected to the notarial act or certificate, where that document or copy thereof is to be retained by the notary in his protocol;
  • The details of any non-notarial services provided to the client which were adjunct to the notarial service;
  • Fees charged for services rendered;
  • Any special notes or notations in relation to the notarisation or the client.

Notarial records can be retained electronically or in hard copy format, however these must be kept in a secure location and treated according to how a legal practitioner would be expected to treat sensitive and confidential documents.

Importantly, the College recommends that:

  1. Notaries should retain records for a period of twelve years in relation to marine protests, records relating to notarial intervention and originals and copies of authentic form acts;
  2. Recommendation 1 is subject to the individual State and Territory regulatory requirements for notarial practices in relation to the retention of records.

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

In line with the requirements of notarial practice in New South Wales, as outlined in the Notarial Practice Course (College of Law, “Continuing Professional Development: Seminar Papers: Notarial Practice” #CN130703_NOT1, 30 July 2013, at p. 7) clients should expect that a copy of the notarial act or certificate which is drafted, produced and executed by the notary will be retained for the notarial record.

ANZCN Comment – Fraudulent Notarial Acts and Certificates

The Australian and New Zealand College of Notaries has circulated a Comment concerning problems and dangers that some practitioners encounter when they are presented with spurious or nonsense documents for notarisation.

The Commentary encloses an example of a document purporting to be a “Notarial Protest For Non-Payment – Non-Performance of the Bill’s Irrevocable Prerogative Writ of Commands” which is allegedly drafted pursuant to the Bills of Exchange Act 1909 (Cth). Prof. Philip Hamilton, who prepared the Commentary for the College, urges notaries to take care when they find themselves being asked by their clients to sign and seal documents that appear to be suspicious.

From the outset, there is in fact no such creature as a “Prerogative Writ of Commands” (ANZCN Comment at ¶¶ 2, 10(g)). Moreover, while the Bills of Exchange Act applies to defined bills of exchange, inland bills do not require to be protested; yet the suspicious document that the notary was asked to notarise appeared to concern parties all of whom appear to be residents within the Commonwealth. Only foreign bills of exchange can be protested, and within 48 hours after being noted (ibid at ¶¶ 4-7).

Another thing that should alert the notary to the potential danger of executing and sealing a suspicious document is that it is drafted in a manner which suggests it is the act of the notary himself. Prof Hamilton notes that “[b]y virtue of this, the notary is not merely attesting that [the client] has signed it, but is adopting it as [his], and is asserting the truth and accuracy of its contents” (ibid at ¶ 1).

Furthermore, the suspicious document, which was not drafted by the notary to whom it has been presented, purports to narrate a series of alleged factual events, which veracity the notary cannot possibly be aware (ibid at ¶ 11). In addition, the suspicious document includes further argumentative and unprofessional text which appears to go to the powers and authority of certain persons addressed in the narrative; this is then followed by “the crunch”: a claim for payment (ibid at ¶ 12).

Prof Hamilton identifies that “the entire thrust of this document is to grab onto the coattails of the Bills of Exchange Act because it uses the grossly misunderstood term ‘protest’ in relation (solely) to foreign bills of exchange” (ibid at ¶ 14) but that Public Notaries:

“[S]ould understand that protests of bills of exchange and ships’ protests are merely antiquated methods of recording a sequence of events so that, in any proceedings that arise from the facts, there is immediately available an authoritative statement of the essential facts.” (ibid at ¶ 15)

The Commentary warns notaries that the use of similar documents in the United States has resulted in criminal prosecution of  the guilty parties as well as their advisers and that some of these have had lengthy prison terms imposed at sentencing (ibid at ¶ 16).

The fact that the suspicious document makes reference to yet another document, while that other document is not attached or exhibited (ibid at ¶¶ 8-10) should raise additional concerns in the mind of the notary. A question that should naturally arise is whether or not that other document in fact exists, or whether it is itself defective or spurious if it does exist. Prof. Hamilton concludes that:

It is, in our opinion, only a matter of time before documents such as the present come before the superior courts in Australia, at which point notaries who have permitted the malefactors to engage their services by preparing, signing and sealing such patently fraudulent rubbish will be inevitably found to have been instrumental in perpetrating the fraud, which traduces the fame and office of the notary public.” (ibid at ¶ 17)

In light of the dangers that may arise when a notary seals a document that may be nonsensical or fraudulent, especially where that document is drafted as if it were issued by the notary himself, the risk of a potential finding of professional misconduct against the notary is a very serious matter. Where the notary’s signature and seal attest to the veracity of the document being notarised, “[c]ritical appraisal of every document is vital” (ibid at ¶ 19).

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Additional Comment

In light of the issues described above, some questions that the notary may wish to ask his potential client before offering his services (in circumstances similar to those outlined in the College’s Commentary above) may be:

  1. Why does the client require the document to be notarised?
  2. Who prepared the document that is requested to be notarised?
  3. Has the client received legal advice in relation to the document to be notarised?
  4. Has the client received any other advice in relation to same, and if so, from whom?
  5. Where are the other documents which are referred to in the narrative?
  6. If the other documents are unavailable, why are they unavailable?
  7. Who is attesting or declaring to the veracity of the narrative in the document?
  8. Why does the client not prefer to swear or affirm an affidavit or statutory declaration in respect of the narrative?
  9. Are there any proceedings on foot, whether legal or administrative, in relation to the subject matter in or of the document to be notarised?
  10. If there are proceedings on foot or being contemplated, is legal counsel involved, and if not, why not?
  11. If legal counsel is involved, is he aware of the fact that notarisation of the document is being requested, if not, why not?

In the words of Prof. Hamilton, “[w]e stress yet again that the notary has no duty to sign whatever is put before […] him” (at ¶ 19).

ANZCN 2014 Conference: Honolulu Hawaii

ANZCN 2014 ConferenceThe Australian and New Zealand College of Notaries has given notice of its 2014 Conference, which is to be hosted at the Kahala Hotel and Resort, Honolulu, Hawaii on 23 to 25 October 2014 under the title of “Working with the Americas.” Some notable presentations that will be of interest to Australian notaries public include:

  • Daniel-Sedor Senghor, “A new relationship between civil law and common law notaries” (scheduled for Friday 24 October at 9:30 to 9:50) [this presentation is made from the perspective of the civil law tradition; see the presentation of Ken Sherk the following day at 9:30 to 9:45 for the common law perspective]
  • William Fritzlen, “Authenticating US notarial acts, and dealings with the State and Territory notary administration” (scheduled for Friday 24 October at 10:25 to 11:00)
  • Mia Harbitz, “Civil registration – a  neglected dimension of international development” (scheduled for Friday 24 October at 12:00 to 12:30)
  • Joseph Lukaitis, “Who are you with whom I am dealing?” (scheduled for Friday 24 October at 12:30 to 13:00)
  • Prof. Heather MacNeil, “The evolution of written records and trusting records in a post-modern world” (scheduled for Friday 24 October at 12:00 to 14:00)
  • Tim Reiniger, “Electronic notarisation in the USA” (scheduled for Friday 24 October at 14:30 to 15:00)
  • Ron Usher, “Electronic record keeping” (scheduled for Friday 24 October at 15:00 to 15:30)
  • Ken Sherk, “A new relationship between civil law and common law notaries” (scheduled for Saturday 25 October at 9:30 to 9:50) [this presentation is made from the perspective of the common law tradition; see the presentation of Daniel-Sedor Senghor the previous day at 9:30 to 9:50 for the civil law perspective]
  • Prof. Jeffrey Talpis, “Cross border circulation of notarial acts and other aspects of conflicts of law” (scheduled for Saturday 25 October at 10:15 to 10:45)
  • The Hon. J. D. Rooke, “Organised pseudo legals, including the regrettable involvement of notaries in their documentation” (scheduled for Saturday 25 October at 11:30 to 12:00)

This is not an exhaustive list of the scheduled presentations; the selection has been made only in light of what the Australian notary may find illuminating and informative. Other guest speakers and presenters at the conference will include Dr. Christopher Bernasconi, Wane Baird, Michael Bula, Prof. Kathryn Burns, William Fitzlern, Assoc. Prof. Maria Marta Herrera, Sue Marshall, Milt Valera and Prof. Peter Zablud. The College should be contacted directly for more information as to how local notaries in New South Wales may reserve a ticket for the Conference.

Revista Internacional del Notariado (No. 120, First Semester 2014)

Revista internacional del notario 120The 120th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) has been released. The issue contains an editorial by Águeda L. Crespo, the president of the Permanent Notarial Office for International Exchange (ONPI) for the legislature of 2014-2016 and an introductory comment by Daniel-Sédar Senghor, the president of the International Union of Notaries.

Á. L. Crespo outlined how his office has been opened to collaboration with other country jurisdictions willing to work with the ONPI, restructured the work areas and inaugurated the new online “ONPI News” service. The Commission and Working Groups’ reports and activities have also been made available online for consideration and review. An announcement was also made in relation to the official naming of the ONPI library in honour of the past president, Rafael Gómex Ferrer Sapiña. Finally, the president of the ONPI reflected on the utility and future of the print edition of the Revista Internacional del Notario before quoting André Gide:

In the presence of certain books, one wonders, who will read them? And regarding certain people, one wonders, what do they read? Finally books and people met each other.

D.-S. Senghor raised a concern regarding the apparent challenges facing notaries world-wide, where their “essence” and “function” is being questioned. He urged notaries to be involved in the working groups and play an active role in the profession:

We have to rebuild the belief we need to have of the utility of our profession and that our function is meaningful only through the service it renders.

The remaining English language components of this issue include:

  • “Some Thoughts Expressed at the Opening Ceremony in Bern, Switzerland.” [pp. 61-62]
  • Juan Ignacio Gomez Villa, “Normas de Organizacion de la UINL y su Significado en el Notariado Mundial” concerning the need for deontological rules tailored for different notaries as well as the Code of Deontology. (21 December 2014) [pp. 69-77] (Only Abstract available in English)
  • Dennis D. Martínez Colón, “Titulacion: Notas Sobre Conceptos Fundamentales y Proyectos de la UINL” concerning the concept of property entitlement and the importance of assessing the notarial document. (18 July 2014) [pp. 101-105] (Only Abstract available in English)
  • Pierre Becque, “Le Nouveau Code Civil Roumain: Les Similitudes Entre le Code Civil Français et le Nouveau Code Civil Roumain en Matiere de Regimes Matrimoniaux” concerning the reform of the Romanian Civil Code as to the recent amendment to the community property regime in matrinonial cases, with a comparative analytical approach to the French legal regime. (undated) [pp. 115-124] (Only Abstract available in English)
  • Luc Weyts, “Quelle est la Valeur d’un Act Notarié à l’étranger? A Propos de la Circulation de nos Actes au Sien de l’Europe” concerning the circulating of notarial deeds and court judgments throughout Europe, in particular to mutual acknowledgments which vitiate the need to obtain apostille. (drafted 4 June 2014) [pp. 131-137] (Only Abstract available in English)

Revista Internacional del Notariado (No. 119, December 2013)

Revista internacional del notario 119The 119th issue of the Revista Internacional del Notariado (RIN), published by the Unión Internacional del Notariado (International Union of Notaries) has been released. This current issue contains the last message form the president/director of the editorial committee Leon Hirsch in the present legislature term. He writes that:

It has been a long time since the first scribes began, still in an unsystematic way, to perform an activity that has been perfected and adjusted throughout the centuries to support an important social imperative: to provide certainty to the most important transactions and acts.

L. Hirsch discussed the importance of the recent 27th International Congress of Notaries which was held in Lima, 9 through to 12 October 2013, during which current issues and recognised problems of the notarial practice were discussed and analysed, solutions and conclusions were proposed, and guidelines were articulated to ensure that the practice of notaries will be held to the highest standards of competence and efficiency.

The present issue of RIN also documents the various papers that were delivered at the Congress. Anglophone readers will pleased to note that English translations of several of these have also been included in the pages of RIN. These include the following:

  • “Reflections of the Notariat on Family Law and the Law of Succession in light of new social relations” [pp. 49-50]
  • “Legal certainty in the property market: The need for regulatory instruments” [pp. 53-54]
  • “Conclusions Forum International” [p. 87]

Additional English content includes an extensive article on the “Deontology and Rules of Organisation for Notaries” [pp. 135-147] as well as several resolutions and recommendations, including:

  • “Theme ‘Development of Notarial Duties'” (adopted by the general meeting of member notaries, 1st ordinary session of the 2011-2013 legislature, Cartagena de Indias, Columbia, 2-3 December 2011) [pp. 161-162]
  • Resolution No. 2 “The Public Authority and the Status of Notary” (GM-GC Algires, 18-19 October 2012) [pp. 171-173]
  • Resolution No. 3 “Theme Economic Usefulness of Notaries” (GM-GC Algires, 18-19 October 2012) [pp. 183-186]
  • Recommendations adopted by the general meeting of UINL Member Notariats in Lima to the national Chambers and/or national Councils of UINL notariats regarding the role of the notary in the aging society: “Aging Society a Challenge for the Notary” (8 October 2013) [pp. 195-198]

Finally, the André Ducret Award for the best scientific contribution of the previous Congress was presented to Lionel Galliez for his work “The Use of Notarial Documents to Secure Investments”. His paper “The Notarial Act – An Instrument of Investment Security” is translated into English in the present volume of RIN [pp. 223-230].

A review of the above articles may be published in a future post, time and resources permitting.