The Affidavit With No Certificate at 4:40 p.m.
Debra arrives at a Kalispell copy shop at 4:40 p.m. on a Thursday with a three-page "Affidavit of Income" prepared by her landlord's lawyer. The record ends with a signature line labeled "Affiant" and a blank line labeled "Notary." There is no notarial certificate language anywhere on the document, and no oath has been administered by anyone. Debra wants the notary to "stamp it so it's official" before a 9:00 a.m. hearing tomorrow. Her only photo ID is a Montana driver license that expired 14 months ago; she also offers a utility bill and a bank statement. The notary on duty has no personal knowledge of Debra and has never met her. The notary's commission expires in six weeks.
1. What notarial act does this record actually require, and may the notary simply attach whichever certificate the customer prefers?
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The document is self-labeled an affidavit, which is a sworn statement. That makes the required act an oath or affirmation recorded by a jurat - not an acknowledgment.
Reasoning steps:
- Classify by the signer's behavior the document requires, not by the blank line on the page. An acknowledgment certifies that the signer appeared and acknowledged a signature already made; a jurat certifies that the signer swore to the truth of the contents in the notary's presence.
- The certificate must describe the act actually performed. A notary who administers an oath but attaches an acknowledgment certificate (or vice versa) has created a record the certificate misdescribes, exposing the signer and the notary to challenge.
- The notary cannot supply missing operative language for another person's legal document. If the preparer intended an acknowledgment and drafted the wrong form, the fix belongs with the preparer or the attorney, not the notary's stamp drawer.
- The notary must actually administer the oath - put the signer under oath or affirmation and hear the response - before signing a jurat. Watching a signature and stamping the page is not a jurat.
- Practical answer: explain both options, decline to pick for her, and if time allows, have the preparer add correct certificate wording. If the signer insists on an oath, administer it and complete a jurat that states the act performed, the date, the notary's name and commission information, and the identity method used.
2. Is the 14-month-expired driver license acceptable proof of identity? What may the notary do if it is not?
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Not automatically. The notary must measure the credential against the statutory definition of satisfactory evidence of identity in Montana's Revised Uniform Law on Notarial Acts (MCA Title 1, ch. 5, pt. 6).
- Read the definition before deciding. Some versions of the uniform act accept a government-issued photo ID that is current or expired within a specified window; others require a current credential. Whether 14 months falls inside or outside that window is a statutory check the notary must actually make, not assume from habit or from what a neighboring state allows.
- Utility bills and bank statements are not identity documents under any version of the definition. They corroborate an address; they do not prove who is standing at the counter.
- If the license fails the definition, the notary has two lawful routes: (a) the notary's own personal knowledge of the signer, which is unavailable here, or (b) a credible witness who personally knows the signer and who is identified to the notary by oath and, ordinarily, by an acceptable credential. The witness swears to the signer's identity; the witness's statement is recorded.
- Do not "work around" the rule by accepting the expired license plus the bank statement as a package. Documenting a defective identity basis is worse than declining.
- Record the method used in the journal: the type of credential and its identifying number, or the credible witness's name and the basis of that witness's knowledge.
3. Does the notary's approaching expiration date affect this act, and what should the notary do about it?
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The expiration date does not invalidate the act if the act is completed before the commission lapses - but it drives several practical choices.
- Timing is the whole question. A notarial act performed after the commission expires is not a valid notarial act, no matter how experienced the notary is or how minor the defect appears.
- The certificate must show the true expiration date, and the stamp must be current and legible. If the stamp's date is wrong or unreadable, the notary should correct or replace the stamp before the 9:00 a.m. deadline rather than risk a rejected filing.
- Never antedate or backdate. If the act slips past expiration, the notary cannot date the certificate earlier to rescue it. Dating a certificate other than the date of the act is a falsification problem, not a clerical one.
- Renewal lead time. With six weeks left, the notary should file the renewal application and complete any required oath and bond now, because a lapse - even of a few days - interrupts the ability to serve clients and creates a gap that cannot be papered over afterward.
- Say so to the customer. If the act cannot be completed today, tell Debra plainly so she can find another notary before the hearing.