ANZCN Practice Note – Dealing with Documents Written in a Foreign Language

Since notaries are approached by client who need to have documents certified for use overseas, it is not uncommon that those original documents will be drafted in a foreign language. A recent Practice Note issued by the Australian and New Zealand College of Notaries (April 2019) addresses the problems that a notary may encounter in these situations.

The Practice Note outlines four general cases which deal with a foreign language document: Where the Notary and his client are both familiar with the langue in which the document is drafted; where only the client is familiar with the language; where neither the Notary nor his client are familiar with the language; where the document being notarised is bilingual.

The Language is Known to both the Notary and the Client

The key point is that the Notary is satisfied that his client “understands the meaning and agrees with the contents of the foreign language document.”

Our additional comment: In the case where both the Notary and the client are familiar with the language in which the document is produced, the practice Note assumes that the Notary will have some working knowledge of the relevant legal provisions governing the use of the documents being notarised. However we must remind readers that this too can be a fraught with risks and difficulties (for more information, please refer to our article “Dealing with Foreign Documents”)

The Language is Known to the Client Only (not the Notary)

In the event where the Notary has no knowledge of the language in which the document is drafted but which his client claims to be familiar, the notary will have to satisfy himself that the client’s claims are true. The key point here is that even if a client is proficient in the language in which the document is prepared, oftentimes people may overestimate their ability to interpret technical or legal material. The Practice Note suggests that the Notary:

    • Might ask the client to read the document in front of him.
    • Should ask the client whether the document is understood.
    • May engage in a “gentle cross-examination” to ascertain whether the client indeed does understand the meaning of the document.

The practice Note further suggests that an additional paragraph may be included in the Notary’s certificate, to the following effect:

“AB declared to me that he/she was fluent and literate in the XYZ language and AB also declared to me that he/she had read and understood and agreed with the content of the attached document before signing the document in my presence.”

Our additional comment: The Notary may ask to go through the document a paragraph at a time and ask the client to interpret the paragraph, and whether there is any ambiguity or uncertainty in its terms or provisions. The Notary should be wary of moments where the client may appear confused or uncertain. In these situations, it may be advisable to have the client obtain a translation of the document, or seek advice from a legal professional who is competent to provide formal advice on the meaning of the document to be notarised.

The Language is Known to the Notary Only (not the Client)

In this situation, the document must be translated. The Practice Note suggest that this can be accomplished either through an interpreter who orally translates the document in the presence of the Notary, or through an accredited translation service which will provide a written translation and accompanying affidavit.

In the case of the oral translator, he will have to make a declaration to the Notary that he is fluent and literate in the relevant language, and that declaration will form part of the Notary’s certificate. Moreover, the fact that the document was translated in this way must also appear in the client’s signing clause.

In the case of the formal written translation, the translated version of the document, as well as the translator’s affidavit (and of course the foreign language original) must be included as exhibits in the notarial certificate.

Our additional comment: While obtaining a written translation may be more costly and time consuming, it is preferred on the grounds that it represents a clearer record of the manner in which the foreign language document was executed and notarised.

The document being Notarised is Bilingual (Drafted in Two Languages)

In this situation, where the document being notarised may be formatted in a way such that its provisions are arranged in two columns, one in English and another in a foreign language, it is important for the Notary to assert his and his client’s language proficiency. The Practice Note suggests the following paragraph be included into the final certification:

“AB has signed the attached document before me in the English version only understanding the English version to be a true and correct translation of the XYZ version and AB has declared to me that he is not fluent in the XYZ language and only fluent in the English language and I certify that I have witnessed the signature of AB on the attached document in the English version only and I confirm that I have no knowledge of the XYZ language.”

The key point here is that neither the client nor the Notary should assume that purported translations in bi-lingual foreign documents are accurate. Omitting the kind of language status paragraph from the notarial certificate may result in a situation where the foreign language component of the document is relied upon by another party in the foreign jurisdiction, and if that component of the document does not accurately correspond with its English version, the client (and the Notary) may be exposed to an unintended liability.

The Practice Note recommends that practitioners refer to Prof. Peter Zablud’s Principles of Notarial Practice (2nd ed.; The Notary Press, 2016), specifically chapter 10 on “Interpretations and Translations”. Or information on how to obtain a copy of this invaluable text, please direct your inquiries to the ANZCN directly.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who require a foreign language document to be notarised for use overseas are encouraged to contact a local notary via this website.

ANZCN Practice Note – Requirements for Authentication under the Apostille Convention

Notaries must be able to inform their clients whether or not the process of notarisation will involve an apostille, or an additional step involving an authentication or legalisation. The recent Practice Note issued by the Australian and New Zealand College of Notaries (ANZCN) states that:

“In every case, where a notary provides a notarial certificate or attestation, he […] should ensure that the notarial client is aware of the further need for the certificate to have an Apostille affixed or for authentication and consular legalisation to be carried out. In the case of some Commonwealth countries neither step is required.” (p1 ¶ 2)

For the sake of convenience, the Hague Convention Abolishing the Requirements for Legalisation for Foreign Public Documents (5 October 1961) has removed the need for legalisation, which has been known as “chain certification”. However, this only applies to jurisdictions that have signed up to the Convention. Other jurisdictions which have not signed up to the Convention still require the additional step before the notarial act is completed.

As at September of 2017, 155 jurisdictions have signed up to the Convention. In all states of Australia, the Department of Foreign Affairs and Trade is the authority under the Convention to issue apostilles and authentications, as the case requires. This list will likely continue to grow in coming years, and notaries must ensure that they are familiar with the appropriate process for their notarial act.

The Hague Convention website is updated when new jurisdictions subscribe to the scheme which removes the need for “chain certification”. Australia acceded to the Convention on 11 July 1994 and it entered into force on 16 March 1995. Australian Notaries should note however that major jurisdictions such as the People’s Republic of China are not signatories to the Convention at this time, nor are many countries to our near-north.

Notaries should also note that some Commonwealth countries do not require authentication or the apostille, and a straightforward act of notarisation is sufficient for it to be considered probative. The ANZCN suggests that notaries consult with the commentary in the Second Edition of Prof. Peter Zablud’s leading text Principles of Notarial Practice and in particular Appendix 14, “Authentication Requirements for Australian Notarial Acts.” The ANZCN Practice Note makes I explicitly clear that:

“In no circumstances and on no account, should a notary ever purport to complete or sign an Apostille or Authentication.” (p 3 ¶ 4)

Out additional comment: This Practice Note may seem trite and obvious to the experienced notary, however oftentimes it may be beneficial to reinforce key concepts and principles of notarial practice. Notaries in the common law jurisdictions provide an invaluable service to clients dealing with business and other personal affairs across jurisdictions and between different countries. The purpose and function of the Apostille and Authentication is to confirm that the notary and his seal is legitimate. For jurisdictions that are not signatories to the Convention, the process of legalisation by a Consular official of the country in which the notarial certificate is intended to be used essentially authenticates DFAT’s authentication of the notary’s seal. Of course, it is impossible for a notary to authenticate his own seal. Clients must be advised which steps are necessary for their particular notarial act to be seen as credible in the eyes of a foreign court or administrative body.

This is a summary of a Practice Note issued by the ANZCN. Practitioners who would like more details about the Practice Note should contact the College directly. Client who need documents to be notarised for use overseas in a court, administrative body or for business purposes are encouraged to contact a local notary via this website.

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.

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 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.