Can a Family Member Act as a Witness?
Saturday, August 27, 2022 by the American Association of Notaries
The role of the notary in society is to serve the public as an impartial witness in taking acknowledgments, administering oaths and affirmations, and performing other acts authorized by law. When a notary places his or her notary stamp and signature on a document, the document recipient automatically assumes that the notary has executed his or her responsibility correctly. This means that the notary has maintained impartiality, has performed notarial duties according to state law, and has acted with the utmost integrity.
Notaries understand that they are prohibited from notarizing any document if they would have a beneficial or financial interest in the transaction. Accordingly, when a document requires the signature of a witness (for example, for a last will and testament), the same restrictions must be placed upon the witness as are placed upon the notary.
Purpose of a Witness
Generally, a document may require that a witness observe the parties as they sign it. The witness must then sign the document to indicate he or she saw each party sign. Witnesses ensure that the document was signed by both parties and no forgery took place. Having someone present to attest to this can be valuable if there is ever a dispute regarding the parties or the contract.
Witness Requirements
Usually, state law will specify when witnesses to a document are required. Requirements may vary based on the document being signed and might include any of the following:
- Witnesses may need to be at least 18 years of age.
- Close relatives might be prohibited from being a witness.
- More than one witness may be needed.?
A witness must be of sound mind and must not be named in or benefit from the execution of the transaction. However, a witness does not have to understand or know what is in the document in order to be a valid witness.
Who Can Be a Witness
Neighbors or co-workers make good witnesses and strangers will suffice. Witnesses should not have any type of beneficial or vested interest in the transaction. In other words, the witness(es) must not be able to enjoy any present or future benefit or financial gain arising from the transaction. While notary laws do not necessarily directly address this issue, the notary must assure, to the best of his or her ability, that the transaction has been executed correctly and with integrity, leaving no room for future liability or legal challenge.
Who Cannot Be a Witness
Unless it is stated clearly in your state’s notary laws, close family members should not serve as witnesses to any legal document, even if they are not named in the document. Your spouse, in-laws, or close relatives are likely to have at least some interest, direct or indirect, in any document you sign. Therefore, it is important to find an impartial witness.?
Notaries are well advised to record the names of the witnesses in the journal and have the witnesses sign their journals or notary record books along with the principal signer.
In every way, an effort should be made to maintain the integrity of the transaction. This is the type of reasonable care that will provide protection for the notary—and the principal signer—if the transaction is ever questioned or examined in a legal proceeding.
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