Every now and then lawyers come across the need to use the services of a Notary Public, perhaps even more frequently in recent years, owing to increased globalisation which results in a greater need to detect fraudulent behaviour. This article will, after briefly describing the role of the New Zealand Notary, focus on two core aspects of the work of a Notary, being the witnessing of signatures and identification issues and the authentication of documents, with a final word about international succession law.
The role of the Notary Public in New Zealand
The role of the Notary Public in New Zealand could be no better described than as appears on the New Zealand Society of Notaries website: A notary public (sometimes called a notary or a public notary) in New Zealand is a lawyer authorised by the Archbishop of Canterbury in England to officially witness signatures on legal documents, collect sworn statements, administer oaths and certify the authenticity of legal documents usually for use overseas.
Witnessing signatures: identification
To officially witness signatures may at first sight appear to be a simple task. However things are not always simple. A person appearing before a Notary may not be who they appear to be:
“They called him “The Doctor”.
Based in Bangkok, for years hunted a man "revered among Bangkok's criminal underworld for producing the most sophisticated forged travel documents on the market for just $2,000-$3,000". Hidden in a secret compartment were 173 passports from France, Israel, New Zealand, Iran and Syria, and a cache of electronic chips, moulds for visa stamps, ribbons, inks and specialist printing equipment.”
A Notary must therefore take care to positively identify the person appearing before her or him, by asking for several forms of identification, and scrutinising documents in great detail, even to the point of using a magnifying glass or UV light. One flaw which would reveal a fraudulent passport is a slight shadow at the edge of the passport photograph, which will not be present on a valid passport. In New Zealand many Notaries attribute points to documents establishing identity, with the aim of reaching 100 points. Passports, Citizenship certificates, and Firearm licences are at the higher end – 70 points. Rates notices and utility accounts total 20 points, and Motoring Association cards and Taxation assessment notices total 10 points.
In New Zealand a Notary will be asked to certify as to the authenticity of documents for use overseas. Normally the Notary places a Notarial Certificate over a document presented to her or him certifying that the document is a true and correct copy of an original, or is authentic.
However, a recent French Court de Cassation case (France's highest appellate court) illustrated “a very dangerous precedent for Australian notaries, who carry out work according to the minima of notarial requirements in lieu of a holistic international approach”.
In this case (which has direct relevance for New Zealand Notaries), a West Australian Notary certified the signing of a power of attorney written in French, in spite of the fact he did not understand the language. The power of attorney was then used by the attorney in France to sign a guarantee relied upon by a bank. A bright French lawyer acting for those affected by the guarantee challenged the validity of the power of attorney in court.
The court held that the power of attorney was indeed invalid as the Notary had not explained its contents to the Appearer and stated in his certificate that all the requirements under the French system for authentic acts had been completed.
Where a New Zealand Notary is presented with a document in a language she or he does not understand, either an official translation is necessary, or a certificate should be used as follows:
As the attached [Special Power of Attorney] has not been drafted by me and is in a language with which I am not familiar, I give no imprimatur as to the contents thereof. This Notarial Service therefore extends only to the identification of [witness name] and the witnessing of his/her signature.
The use of such a clause should put overseas parties on notice, should their jurisdictions need more information.
In addition to the Notarial Certificate, before certain New Zealand-issued documents can be used overseas, further authentication may be necessary, both by the embassy of the country involved and by New Zealand's Department of Internal Affairs (“DIA”), It is required by overseas officials who are not able to determine on sight the authenticity of New Zealand issued documents. Apostille Certificates are available for use in countries that have signed the Hague Convention, abolishing the requirement of legalisation for foreign public documents. The countries which accept Apostille certificates are listed on the DIA’s website.
Frequently, solicitors certify documents as correct and clients send them to the DIA in Wellington only to be told that they cannot authenticate documents certified by a solicitor or a Justice of the Peace, and the documents are returned. To prevent this delay, solicitors are urged to contact a Notary in the first instance, who will be able to quickly advise the most appropriate course and process for both their certificate, the DIA authentication and any embassy authentication. The Notary is authenticated by the DIA, and the DIA is further authenticated by an embassy in the longest of processes; this is often the case with documents for use in China, for example, in the writer’s experience.
Changes to international succession law – The European Certificate of Succession
There are 450,000 cross-border successions every year in the European Union alone. Many New Zealanders increasingly own property in countries other than New Zealand, New Zealand practitioners often face difficulties with how to advise a client with assets both in and out of New Zealand. Sometimes a will is drafted by New Zealand lawyers which applies to worldwide assets. In that situation a conflict of laws can arise as to which law applies to estate succession.
European Succession Regulations (better known as Brussels IV) apply to people who died after 17 August 2015. This has made it possible to apply for a European Certificate of Succession within the European Union member countries who have agreed to this (currently 25 EU members). Note that the Regulations do not change in any manner the extensive scope or application of taxation (at least in France), but are designed to provide for an election of jurisdiction for succession. A spokeswoman for the European Commission, which drafted the original version of the regulation, and will enforce its application, said: “In the future succession regulation, as the text stands today, the rules on applicable law are of universal application, which means that a US citizen living in France may choose the law of his or her nationality (US) to be applicable to his succession.”
This is a major reform. By extension, where a New Zealand client has assets in an EU country, the chosen law of succession applicable may be New Zealand law, rather than the law applicable to where the property is situated.
The European Succession Certificate is "designed to enable beneficiaries, executors or administrators to prove legal status, entitlement and rights as well as obligations in all succession regulation countries". Michael Bula further states in his paper that a New Zealand Notary or a Probate Court could draft a New Zealand Certificate of Succession, proving applicable law and beneficial and executorial or administrative rights and electing the New Zealand jurisdiction. This can then be supplied to an EU member Notary to enable estate administration to be carried out in accordance with New Zealand law (excluding taxation).
Article written by Ken Lord, as published in The Property Lawyer – Volume 17 Issue 3