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.