The Notary Who Is Also a Beneficiary
Kwame is an Alaska notary. His aunt, who is terminally ill, asks him to notarize her will and a deed transferring her cabin to Kwame 'so it stays in the family.' Kwame is named as a beneficiary in the will and is the grantee on the deed. The aunt is lucid but weak, and two neighbors are present as witnesses. Kwame's cousin has already accused him of 'taking advantage.' Kwame wants to help his aunt finish her paperwork before she enters hospice and believes notarizing is a neutral clerical act. He has no financial interest in charging a fee and plans to waive it.
1. May Kwame notarize these documents? Analyze the conflict and any prohibition.
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Kwame has a direct, disqualifying conflict: he is a beneficiary under the will and the grantee of the deed. Notarizing a document in which the notary has a beneficial interest is a prohibited act or at minimum creates a serious appearance of impropriety and potential undue-influence challenge. Even waiving the fee does not cure the interest. A notary must be a disinterested witness to the signing and acknowledgment.
Kwame should decline to notarize both documents and help his aunt find an independent notary. He can still assist logistically (arranging transportation, contacting a mobile notary) without performing the act. If he proceeds, the documents are vulnerable to challenge and he risks discipline and civil liability.
2. If Kwame declines, what should he tell his aunt and the witnesses, and how should he handle the will's execution requirements?
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He should explain plainly that because he is a beneficiary and grantee, he cannot serve as notary without creating a legal problem for her estate, and that an independent notary protects her wishes. He should not advise her on how to draft the will or deed beyond general information; she should consult her attorney. He can help arrange a disinterested notary and ensure the witnesses are present for the signing.
For the will, Alaska has specific execution requirements (signature and witnesses); the notary's role is separate from witnessing. Kwame should not act as both witness and notary if that creates a conflict, and he should let the attorney coordinate. The goal is a clean, challenge-resistant execution.
3. What records should Kwame keep about his refusal?
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Kwame should keep a brief, dated note of the request, his relationship to the aunt, his refusal and the reason (beneficial interest), and the referral to an independent notary. He should not create a notarial journal entry for an act he did not perform. If he helps arrange the independent notary, he should keep that correspondence but avoid anything that looks like he directed the substance of the documents.
Documenting the refusal protects him if the cousin later alleges impropriety and shows he acted ethically.