Can a Family Member Act as a Witness?

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.

Legal Disclaimer: The American Association of Notaries seeks to provide timely articles for notaries to assist them with information for managing their notary businesses, enhancing their notary education, and securing their notary stamp and notary supplies. Every effort is made to provide accurate and complete information in the American Association of Notaries newsletters. However, we make no warrant, expressed or implied, and we do not represent, undertake, or guarantee that the information in the newsletter is correct, accurate, complete, or non-misleading. Information in this article is not intended as legal advice. We are not attorneys. We do not pretend to be attorneys. Though we will sometimes provide information regarding notaries' best practices, federal laws and statutes, and the laws and statutes of each state, we have gathered this information from a variety of sources and do not warrant its accuracy. In no event shall the American Association of Notaries, its employees, or contractors be liable to you for any claims, penalties, loss, damage, or expenses, howsoever arising, including, and without limitation, direct or indirect loss or consequential loss out of or in connection with the use of the information contained in the American Association of Notaries newsletters. It is your responsibility to know the appropriate notary laws governing your state. Notaries are advised to seek the advice of their states' notary authorities or attorneys in their state if they have legal questions. If a section of this disclaimer is determined by any court or other competent authority to be unlawful and/or unenforceable, the other sections of this disclaimer continue in effect.

Notary bonds and errors and omissions insurance policies provided by this insurance agency, American Association of Notaries, Inc., are underwritten by Western Surety Company, Universal Surety of America, or Surety Bonding Company of America, which are subsidiaries of CNA Surety.

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