The Family Deed and the Notary-Grantee
Robert is a Delaware notary. His mother, Mrs. Alvarez, owns a house in Newark. She wants to transfer the house to Robert and his sister as joint tenants with right of survivorship, reserving a life estate for herself. On Saturday, Mrs. Alvarez signs the deed in Robert's kitchen. Robert is named as a grantee and will hold a one-half interest. His mother asks him to notarize her signature because the family wants to record the deed Monday and the nearest bank notary is closed. Robert's commission is active, and he has his seal and journal. His sister says, "It's fine; Mom trusts you, and you're a notary." Robert wonders whether he can simply sign the acknowledgment, note that he is the notary, and disclose the relationship in the journal. He also considers asking his sister, who is not a notary, to sign as a witness instead.
1. May Robert notarize his mother's signature on this deed? Explain the conflict.
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Robert should not notarize the deed. A notary may not notarize the notary's own signature, and a notary should not perform a notarial act in a transaction in which the notary is a party or has a direct beneficial interest. Robert is a grantee and will acquire a one-half interest in the house. His acknowledgment would be self-interested: he would be certifying his mother's appearance and voluntary signature while personally benefiting from the transfer. Disclosing the relationship in the journal does not cure the conflict. The sister's reassurance and the family's urgency do not change the rule. The lawful solution is for Mrs. Alvarez to appear before an independent notary-at a bank, law office, or mobile notary-and acknowledge the deed. Robert should explain the conflict and not sign the certificate.
2. Can Robert's sister serve as a witness instead of a notary?
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No. A witness and a notary serve different functions. A witness may attest that a signature was made, but a witness cannot perform a notarial acknowledgment or complete a notarial certificate. The deed needs a proper notarial act unless Delaware law provides a specific alternative recording method, and a witness is not a substitute. Robert's sister could sign as an additional witness if the document or recording requirements call for one, but she cannot supply the acknowledgment. Robert should not use her as a workaround. He should arrange for an independent notary to perform the acknowledgment and, if needed, a disinterested adult to witness.
3. What are the consequences if Robert notarizes despite the conflict?
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If Robert notarizes, he creates a self-interested acknowledgment that is highly vulnerable to challenge. The deed may be rejected by the recording office or later attacked in court by another heir, creditor, or the mother's estate. Robert could face discipline from the commissioning authority, including suspension or revocation of his commission, and potential civil liability. If the certificate falsely suggests an independent notarial act, it may also be treated as official misconduct. The family's desire to record quickly does not justify the risk. Robert should preserve his commission and the deed's validity by having an independent notary perform the acknowledgment, even if that means waiting until Monday.