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S1059................................................by JUDICIARY AND RULES
WRITTEN INSTRUMENTS - Amends and adds to existing law relating to
acknowledgments of written instruments to provide for the certification of
the affixation of a signature by mark; to provide for a signature by a
notary for a person physically unable to sign or make a mark; to provide
for a certificate of acknowledgment by a person signing by mark; and to
provide for a certificate of acknowledgment by a person physically unable
to sign or make a mark.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE SENATE
SENATE BILL NO. 1059
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO ACKNOWLEDGMENTS OF WRITTEN INSTRUMENTS; AMENDING SECTION 51-109,
3 IDAHO CODE, TO PROVIDE FOR THE CERTIFICATION OF THE AFFIXATION OF A SIGNA-
4 TURE BY MARK AND TO PROVIDE FOR A SIGNATURE BY A NOTARY FOR A PERSON PHYS-
5 ICALLY UNABLE TO SIGN OR MAKE A MARK; AMENDING CHAPTER 7, TITLE 55, IDAHO
6 CODE, BY THE ADDITION OF A NEW SECTION 55-712A, IDAHO CODE, TO PROVIDE FOR
7 A CERTIFICATE OF ACKNOWLEDGMENT BY A PERSON SIGNING BY MARK; AND AMENDING
8 CHAPTER 7, TITLE 55, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 55-712B,
9 IDAHO CODE, TO PROVIDE FOR A CERTIFICATE OF ACKNOWLEDGMENT BY A PERSON
10 PHYSICALLY UNABLE TO SIGN OR MAKE A MARK.
11 Be It Enacted by the Legislature of the State of Idaho:
12 SECTION 1. That Section 51-109, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 51-109. FORMS FOR NOTARIAL ACTS. (1) Certificates of acknowledgment shall
15 substantially conform to the forms set forth in sections 55-710 through
16 55-715, Idaho Code.
17 (2) An oath or affirmation, which is in writing, shall be signed by the
18 person who takes it, and the notary public shall enter thereunder substan-
19 tially the following:
20 "State of Idaho )
21 )ss.
22 County of ..... )
23 Subscribed and sworn (or affirmed) before me this ..... day of ..........,
24 ....."
25 ....................(official signature and seal)
26 (3) An oath or affirmation administered verbally by a notary public shall
27 be in substantially the following form:
28 "You do solemnly swear (or affirm) that the testimony you shall give in
29 the matter in issue shall be the truth, the whole truth, and nothing but
30 the truth." The person who takes the oath or affirmation must respond
31 affirmatively.
32 (4) A certificate of verification of an instrument shall follow the
33 maker's signature and shall identify the notary public and certify that the
34 maker personally appeared, was sworn, stated his authority for making the
35 instrument, and averred the truth of the statements therein. For example, the
36 verification of a corporate document by an officer of the corporation should
37 be in substantially the following form:
38 "State of Idaho )
39 )ss.
40 County of ..... )
41 I, ...................., a notary public, do hereby certify that on
42 this ..... day of .........., ....., personally appeared before me
43 ............., who, being by me first duly sworn, declared that he is the
2
1 ............ of ........................., that he signed the foregoing
2 document as .......... of the corporation, and that the statements therein
3 contained are true."
4 ....................(official signature and seal)
5 (5) If a certified copy of a document cannot be obtained from any
6 recorder or custodian of public documents, and if certification of a copy of
7 the document by a notary public is otherwise permissible, a notary public may
8 certify a copy of the document in substantially the following form:
9 "State of Idaho )
10 )ss.
11 County of ..... )
12 I, ...................., a notary public, do certify that on
13 .........., ....., I carefully compared the attached copy of
14 ......................... (describe document) with the original. It is a
15 complete and true copy of the original document."
16 ....................(official signature and seal)
17 (6) On each notary certificate, the notary public shall immediately fol-
18 lowing his signature state the date of the expiration of his commission in
19 substantially the following form:
20 "My commission expires on .............., ....."
21 (7) (a) A notary may certify the affixation of a signature by mark on an
22 instrument presented for notarization if:
23 (i) The mark is affixed in the presence of the notary and a witness
24 unaffected by the instrument;
25 (ii) The witness signs the instrument beside the mark;
26 (iii) The notary writes below the mark the following: "Mark affixed
27 by (name of signer by mark) in the presence of (name and address of
28 witness) and undersigned notary pursuant to Section 51-109(7), Idaho
29 Code"; and
30 (iv) The notary notarizes the signature by mark through a certifi-
31 cate of acknowledgment or verification.
32 (b) The form of witnessing and certificate of verification for a signa-
33 ture by mark should be in substantially the following form:
34 "Mark: (.......)
35 Printed or typewritten name of person signing by mark:
36 ..........................................................................
37 WITNESS: .................................................................
38 Mark affixed by (name of signer by mark) in the presence of (name and
39 address of witness) and undersigned notary pursuant to Section 51-109(7),
40 Idaho Code.
41 State of Idaho )
42 )ss.
43 County of ..... )
44 I, ...................., a notary public, do hereby certify that on
45 this ..... day of .........., ....., personally appeared before me
46 ............., who, being by me first duly sworn, declared that he/she
47 made his/her mark on the foregoing instrument, and that the statements
48 therein contained are true.
49 ....................(official signature and seal)
50 My Commission Expires:..................................................."
51 (8) (a) A notary may sign the name of a person physically unable to sign
52 or make a mark on an instrument presented for notarization if:
53 (i) The person directs the notary to do so in the presence of a
54 witness unaffected by the instrument;
55 (ii) The notary signs the person's name in the presence of the per-
3
1 son and the witness;
2 (iii) The witness signs the instrument beside the signature;
3 (iv) The notary writes below the signature the following: "Signature
4 affixed by notary in the presence of (name and address of person and
5 witness) pursuant to Section 51-109(8), Idaho Code"; and
6 (v) The notary notarizes the signature through a certificate of
7 acknowledgment or verification.
8 (b) The form of witnessing and certificate of verification for a signa-
9 ture by a person physically unable to sign or make a mark on an instrument
10 should be in substantially the following form:
11 "Signature of person by notary: ..........................................
12 Printed or typewritten name of person whose signature is made by notary:..
13 WITNESS: .................................................................
14 Signature affixed by notary in the presence of (names and addresses of
15 person and witness) pursuant to Section 51-109(8), Idaho Code.
16 State of Idaho )
17 )ss.
18 County of ..... )
19 I, ...................., a notary public, do hereby certify that on
20 this ..... day of .........., ....., personally appeared before me
21 ............., who, being by me first duly sworn, declared that he/she
22 signed the foregoing instrument by directing the undersigned notary to
23 sign the instrument for him/her, and that the statements therein contained
24 are true.
25 ....................(official signature and seal)
26 My Commission Expires: .................................................."
27 SECTION 2. That Chapter 7, Title 55, Idaho Code, be, and the same is
28 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
29 ignated as Section 55-712A, Idaho Code, and to read as follows:
30 55-712A. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON SIGNING BY MARK.
31 The certificate of acknowledgment by a person signing by mark must be substan-
32 tially in the following form:
33 "Mark: (.......)
34 Printed or typewritten name of person signing by mark:
35 ..........................................................................
36 WITNESS: .................................................................
37 Mark affixed by (name of signer by mark) in the presence of (name and
38 address of witness) and undersigned notary pursuant to Section 51-109(7),
39 Idaho Code.
40 State of Idaho )
41 )ss.
42 County of ..... )
43 On this ..... day of .........., in the year ....., before me (here insert
44 the name and quality of the officer), personally appeared .............,
45 known or identified to me (or proved to me on the oath of
46 .......................) to be the person whose name is subscribed to the
47 within instrument, and acknowledged to me that he/she executed the same by
48 affixing his/her mark thereto."
49 SECTION 3. That Chapter 7, Title 55, Idaho Code, be, and the same is
50 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
51 ignated as Section 55-712B, Idaho Code, and to read as follows:
4
1 55-712B. FORM OF CERTIFICATE -- ACKNOWLEDGMENT BY PERSON PHYSICALLY
2 UNABLE TO SIGN OR MAKE A MARK. The certificate of acknowledgment by a person
3 physically unable to sign or make a mark must be substantially in the follow-
4 ing form:
5 "Signature of person by notary.
6 Printed or typewritten name of person whose signature is made by notary.
7 WITNESS: .................................................................
8 Signature affixed by notary in the presence of (insert names and addresses
9 of person and witness) pursuant to Section 51-109(8), Idaho Code.
10 State of Idaho )
11 )ss.
12 County of ..... )
13 On this ..... day of .........., in the year ....., before me (here insert
14 the name and quality of the officer), personally appeared .............,
15 known or identified to me (or proved to me on the oath of
16 .......................) to be the person whose name is subscribed to the
17 within instrument, and acknowledged to me that he/she executed the same by
18 directing the undersigned notary to affix his/her signature thereto."
STATEMENT OF PURPOSE
RS 16738
Increasingly, people who are required to execute a document
to be notarized are either unable to physically sign at all, or
can only affix a mark. Most commonly, this is because of
physical infirmity, paralysis, or disease. The person has
sufficient mental capacity to execute the document, but does not
have the physical ability to do so. Traditionally, the method
used is to have the person either affix their mark, perhaps an
"X", to the document, or to direct another person to sign for
them. However, Idaho law has been silent on the correct method
of notarizing either of those methods. This bill sets forth the
correct method of the execution of the document, by mark or by
direction, and of notarization of the executed document.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Name: Robert L. Aldridge, Trust & Estate Professionals of
Idaho, Inc.
Telephone:
office: (208) 336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE S 1059