On Titles of Documents and Sworn Statements.
(The “titles” referred to here are not real estate titles or car/truck/mobile home titles that show who owns property. They are the name of the document as shown at the top of the document.)
While it certainly looks more official to have a title on a document, and that is the customary and usual way to prepare documents that are going to be notarized, to my knowledge, there is no legal requirement that a document must have a title. I have notarized many letters and other documents over the years that had no title on them and they apparently achieved their purposes, as none of the people involved ever called me back and said otherwise.
According to the attorney that I worked for when I became a notary many years ago and every attorney that I have consulted in the years since, the title does not determine what the character of the document is. The body or content determines what a document is.
The title is just there to identify the document to the person preparing it and the parties who are going to receive it. Over the years, I have run across hundreds of documents that had the word “Affidavit” in the title (a word normally used for a sworn statement) that lacked any wording anywhere in them that said the signers were swearing or taking an oath or affirming. Likewise, I have seen many that lacked the word Affidavit in the title, yet did contain such wording and were obviously sworn statements.
What matters is whether the body (content of the document) or the notary certificate contain any wording that makes it a sworn statement. It is a sworn statement if the document says within the body of the document OR within the notary certificate that whoever executed (signed) the document did so “upon oath” or “upon being duly sworn” or that they swore or affirmed.
If those words or words to the same effect DO appear within either the body of the document or within the notary certificate, the document is a sworn statement, no matter what the title says. If those words or words to the same effect DO NOT appear within the body of the document and the notary certificate is a standard acknowledgment form, the document is not a sworn statement, no matter what the title of the document says.
So, do not be fooled by the title of the document.
This is important to know for four reasons.
First, if the document is a sworn statement, you must administer an oath or affirmation to the signers of the document. This is true even if the notary certificate is a standard acknowledgment.
Let me repeat that. A notary must administer an oath or affirmation on all sworn statements, even if the notary certificate is an acknowledgment. As this may be contrary to what you have read in other places online, let me explain the logical chain of reasons for why I believe that this is so.
- The signers of a document have it notarized because the party who is receiving it requires it of them (or they believe the receiving party so requires).
- The document must be notarized or it will be rejected by the receiving party.
- By executing the document and having it notarized, the signers are complying with this requirement in order to achieve some purpose which they have chosen.
- As this is a legal matter (and all notarized documents involve legal matters of some sort), the signers certainly do not want to go on record as making any untrue statements.
- They will be on record, as the notary will record the document and key facts of the notarization in their official journal (if the notary follows Best Practices and keeps an official journal, regardless of whether one is required by her state).
- In order for the document to be a true statement, all of the facts stated within it must be true, including any wording that says they swore or affirmed to the contents.
- If no one administers an oath or affirmation to them, the signers can not even acknowledge signing it as a true statement if it says they were duly sworn or made the statement under oath.
- The party receiving the document is relying upon all of the statements made within the document to be true, which is why the wording appears within it that says the signer swore to it.
- While it is not the role of the notary to verify the truthfulness of the documents presented to her, even so, she should never notarize a document that she personally knows is not true, as doing so may mean she is assisting in fraud.
- Unless the notary or someone else present administers an oath to the signers, the notary will know that the wording within the document that says they took an oath is untrue.
- The notary is very likely the only party present who can administer an oath or affirmation to the signers, thereby making that wording true.
So, even if the notary certificate says the signers acknowledged and does not mention them swearing, the notary must administer an oath or affirmation if the document is a sworn statement. An oath or affirmation is a stronger version of an acknowledgment, as all of these simply mean the signers claimed the statements as their own. There is no reason that they can not both swear to a statement and acknowledge it. If the notary certificate says they acknowledged it, they will have done that and more if they took an oath that it was true.
Second, if the document is a sworn statement, you (the notary) need to watch for any specific wording within the notary certificate that says they did not take an oath, especially if the notary certificate is otherwise a standard form of acknowledgment. (I have even seen a few jurats that said the signers did not take an oath, even though the wording of the jurat is “Sworn to and subscribed before me…” As they cannot both take an oath and not take an oath, that will have to be stricken.) If the document is a sworn statement, you will administer an oath, so you would need to correct any statement within the notary certificate that says they did not take one.
Third, if the body of the document lacks any wording about oaths or affirmations or swearing and the notary certificate is a standard acknowledgment, you do not treat it as a sworn statement, because it is not one (regardless of the title). If it is not a sworn statement, you treat it as an acknowledged statement and give the usual verbal ceremony for such, even if the title uses the word “Affidavit.”
Fourth, when you record the sworn statement in your journal, you should make note of the fact that it was a sworn statement, as well as what type of notary certificate you signed. According to Richard Van Alstyne of the Notary Law Institute, the contents of a notary journal are given so much legal weight that they are considered prima facie evidence, meaning they are assumed to be true as a matter of law. So, the more relevant facts about a notarization you enter in your journal, the better. Obviously, one relevant fact would be that this is a sworn statement and another would be what type of notary certificate was signed by you. If the notary certificate was a jurat (which says they swore), you do not have to make a separate mention in your journal about it being a sworn statement.
Sworn statements can be confusing. Titles can be tricky. Just be aware that titles do not make a document a sworn statement; they do not make it an acknowledged statement; they do not determine what the character of the document is. Titles are present just to identify the document to the parties who will receive it so they know what to call it when it is placed among other documents.
(This article was written as part of the first draft of American Notary Basics ™, my book in progress. Please check back here for news about that book in the Books category of posts.)