By Merri Rudd, appeared March 29, 2007, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: I read your column that said the notary verifies the identities of those signing a will and administers an oath to them. What kind of oath does the notary say, and why is an oath involved?

The definitions of "oath" have always baffled me. On one hand, an oath is a solemn declaration to witness the truth of a statement. But "oath" can also mean an irreverent utterance of swear words or blasphemy. Plus one can swear to tell the truth or swear something more sinister. Perhaps someday my linguist friend Dave can explain to me the foundation of the oddities of the English language.

In the world of wills, the notary plays the serious role, that of one who administers a solemn oath. According to New Mexico's will execution laws, the notary or other "officer authorized to administer oaths," 1) checks the identification of the testator and witnesses and swears them; 2) verifies that the testator is signing his or her will; 3) asks whether the testator is signing and executing the will willingly; 4) confirms that the testator is signing freely and voluntarily; and, 5) asks if the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

The witnesses swear that: 1) they are seeing the testator sign and execute the will; 2) the testator is signing willingly; 3) each of the witnesses, in the presence of the testator, and in the presence of each other are signing the will as witness to the testator's signing, and 4) to the best of the witnesses' knowledge, the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

After the above factors are established, the notary asks the testator and witnesses to sign the will and attestation clause. The notary then signs the acknowledgment, applies his or her official seal or stamp, and fills in the date the notary commission expires. In reality, although others may be authorized to administer oaths, I have not encountered a will self-proved by anyone other than a notary.

Caveat to notaries: In my court I have seen mistakes in the notary acknowledgements on various documents. The standard language reads, "Subscribed, sworn to and acknowledged before me by __________________, this ____ day of _______, 2007. Signed ________ (signature of officer and official capacity of officer)." The most common error is notaries writing their own name after the "by" rather than the name of the person signing the document. The correct information after "by" should be the name of the person signing the document, not the notary's name!

This formal procedure with the notary administering the oaths to the testator and witnesses results in a "self-proved" will. A judge generally admits a self-proved will into probate without further proof. If the will was not notarized when it was first signed, the law allows the testator and witnesses to reconvene later in the presence of an officer authorized to administer oaths and "self prove" the will at that time.

If a person does not want to "swear" that something is true, he or she may utter an "affirmation" instead. New Mexico's law states that if a person is required to take an oath and has conscientious scruples against taking the oath, the person shall be permitted instead to make a solemn affirmation, with uplifted right hand, in the following form: "you do solemnly, sincerely and truly declare and affirm," and close with: "and this I do under the pains and penalties of perjury."

An affirmation is equally as valid as an oath. Article VI of the Constitution of the United States directs in part that "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."

What works for the three branches of government works for the public too.

© 2007, Merri Rudd & Albuquerque Journal, All Rights Reserved