[WSBAPT] Can Notary Serve as Witness?

[Eric Nelsen]

After reading all the prior responses, I think this comes down to two issues:



1. A witness is a witness is a witness. A notary could sign the Will attestation required by RCW 11.12.020(1)<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.020>; her/his status as notary makes no difference. The notary also could testify independently of her/his notary status, for example in order to substantiate the signature of a missing attestation witness, per RCW 11.20.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.20&full=true#11.20.040>.



2. But a notary can't notarize her/his own signature, or perform any notarial act relating to a document that the notary signed in any other capacity. RCW 42.44.080(10)<http://app.leg.wa.gov/RCW/default.aspx?cite=42.44&full=true#42.44.080>.



So, the notary can be useful for witness purposes other than simply notarizing the self-proving affidavit; but the usual practice of having three people--two witnesses plus a notary--can't be shoehorned into having only two people by having one witness also be the notary on the self-proving affidavit.



Two side issues.



I think Florida has the same rules we do<http://www.shestokas.com/general-law/requirements-for-a-valid-last-will-and-testament-in-florida/>, and the client is wrong.



BUT--Washington law provides that a Will executed under the formalities of the state where a Will is executed is valid. RCW 11.12.020(1), proviso<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.020>. So a Washington domiciliary could travel to Florida, execute the Will under Florida formalities and bring it back to Washington, and the Will would be valid.



Bonus oddity I just noticed--that proviso in RCW 11.12.020(1) appears to say that a domiciliary of State X could travel to State Y, execute a Will that is invalid under both state's laws but that would be valid under the laws of a third state, State Z; and then the Testator afterward could move to State Z, establish domicile there, and the Will would become valid so long as the Testator was still domiciled in State Z at death.



"That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state." RCW 11.12.020(1).



That oddity also means that the Washington domiciliary who travels to Florida and executes a Will there, could use either Washington or Florida formalities to execute a valid Will.



Sincerely,



Eric



Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040



-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Felicia Value
Sent: Thursday, January 11, 2018 1:22 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Can Notary Serve as Witness?



Colleagues -



I sent Washington estate planning documetns to a client who is a Washington resident presently staying in Florida.  He just emailed me saying they're all executed,  and btw did I know that Florida law allows a notary to serve as a witness?



I've asked my client if indeed the notary acted as both witness and notary.



Among other documents,  the notary would have notarized his or her own Affidavit of Attesting Witnesses.  On other documetns the notary would have signed as a witness and then notarized client's signature.



This won't fly in Washington,  will it?



Thanks in advance for your help.



--

Felicia Value

Attorney at Law

PO Box 578/116 N. Third

La Conner,  WA 98257

(360) 466-2088

Felicia at skagitprobate.com<mailto:Felicia at skagitprobate.com>







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