ANZCN Practice Note – Dealing with Foreign Documents

The Australian and New Zealand College of Notaries has circulated a Practice Note prepared by Prof. Peter Zablud and Michael Bula (20 April 2017) concerning the treatment by Australian Notaries of “authentic form notarial acts” drafted in civil law jurisdictions such as France, Germany, Italy or Spain. This type of notarial act will take the form of a “single narrative instrument written by the notary in the first person which sets out or perfects a legal obligation and/or records some fact or thing.” [p. 1 ¶ 2] This authentic form recalls what is known in the New South Wales notarial practice as a “notarial act in the private form”, i.e. a document that is wholly drafted by the public notary himself.

The Practice Note states that the authentic form of the notarial act is at the core of the civil law country’s legal system. Accordingly, there are very precise rules and regulations governing the manner in which notaries conduct their practice and provide their services. A notary must “certify in the notarial act itself that the Appearers well understand the transaction(s), their rights and obligations and in appropriate cases, the consequences of not meeting specific obligations.” [p. 1 ¶ 6] France is cited as an example, which has the following requirements for the drawing of a proper and valid notarisation:

  • The document must be read to the relevant parties or their legal representatives (the “Appearers”).
  • The applicable law must be explained to the Appearers.
  • Any questions that the Appearers ask of the notary must be answered.

The point being stressed by Prof. Zablud and Bula is that “failure by a notary to meet his or her responsibilities or to comply with prescribed formalities can render an entire transaction null and void.” [p. 1 ¶ 7]

Example: Foreign Power of Attorney— Authentic Form — Australian Notary Witnessed Signature — Did not Comply with Foreign Legal Requirements — Notarial Act Defective — Set Aside

The Practice Note illustrates how a local notary’s mishandling of a notarial act can lead to serious legal consequences for his client. An example involves a power of attorney drafted by a French notaire but which was presented to an Australian notary who was not familiar with the French language. The purpose of the document was to secure a guarantee for a loan on the purchase of property in France. The Australian public notary merely witnessed the signature of his client as it was applied to the document. He did not, however, know that the document was in the authentic form nor what that entailed. As a consequence, the document was not read to the client, its particulars were not discussed with the client, and the local notary did not execute the document as the author of the notarial act. The bank sought to enforce the guarantee after a default in a payment for the property. In a dispute over the validity of the guarantee, the French civil court held that the guarantee (and therefore the mortgage) ought to be set aside for being defective.

Important Lessons:

Reflecting on the example cited above, the Practice Note warns that Australian public notaries should be wary when they are presented with foreign language documents that they may not understand; these document may import specific legal obligations that might not be immediately apparent to the local practitioner. Moreover, in the event that an Australian notary public is asked to witness a power of attorney or other like document, he should ascertain beyond any doubt whether that document is drafted in the authentic (public) or private form, and precisely what he can or should do. Suggested steps include:

  • Contact the drafter of the document and make direct inquiries about its nature. The local notary can request whether or not the document can be redrafted in private form, thus allowing it to be notarised by way of a notarial certificate followed by an apostille or legalisation.
  • Have the document translated by an accredited translator.
  • If still in doubt about one’s own legal obligations, refer the client to a consular officer of the country in which the document, once notarised, is to be used, or a lawyer who is fluent in the language in which the document is drafted. [p. 2 passim]

For more general information on related issues, see the following sections on our website:

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.

Should you need a foreign power of attorney notarised by a Sydney Notary Public, you are welcome to contact us for more information on how we can help having your documentation executed properly. Services can be provided to you directly in the Sydney CBD region and surrounding suburbs, including Broadway and Surry Hills. A Public Notary can also come to you if you or your business is located in the north shore, including North Sydney, Artarmon, Kirribilli, St Leonards, Lane Cove, Chatswood, Willoughby and surrounds. For more on our availability, see our Availability page.

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Notice: Society of Notaries of NSW, “Twilight Seminar”

The Society of Notaries of New South Wales will be hosting a “Twilight Seminar” on Tuesday 17 November 2015 for solicitors practicing as notaries in this jurisdiction. There will be three topics covered, and presentations will be made by professionals and specialists in their given field. These will include:

Justin Betar who will focus on a refresher on the execution of documents (including the execution of documents by companies) and the importance of preparing a proper Notarial certificate. He will also cover what the Department of Foreign Affairs and Trade has highlighted as improper certificates, Notaries using rubber “stamps” as Notarial certificates, particularly regarding education documents. Mr. Bedar is a Notary Public and Lawyer practicing in Sydney CBD. He is the Secretary of The Society of Notaries of New South Wales Inc., and has a particular interest about Notary education. Mr. Bedar was appointed as the Honorary Counsel for the Republic of Ghana in September 2013.

His Honour, Justice Steven Rares will delve into the world the importance of Notaries in international arbitrations and the Admiralty jurisdiction and provide some tips in identifying forged documents. Justice Rares is a Judge of the Federal Court of Australia and is the National co-convening judge and the New South Wales registry convening judge for the Admiralty and Maritime Practice Area.

Alistair Marshal will provide useful and simple ideas on improving the overall performance of the law firm by implementing simple, achievable and cost effective solutions to common problems and issues. Mr. Marshal is a business development expert in Sydney and works with small and large law firms as well as other professionals to increase referrals, new instructions and enhance profit.

Attendance at this seminar will entitle the practitioner to claim 2.5 units of the annual mandatory continuing legal education requirement. For more information about this seminar series, readers are encouraged to contact the Society of Notaries of New South Wales directly.

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.