On July 22, 2021, Governor Phil Murphy signed P.L. 2021, ch. 179, A-4250 (Downey)/S-2508(Gopal) upgrading the laws concerning notaries and notarial acts. What is “notarization”? When an individual executes a legal document, a licensed notary public serves as an impartial witness to the execution of the document and to the acknowledgement of the signatures on the documents. A notary public can also administer oaths and affirmations. In New Jersey, attorneys can notarize documents and the law applies equally to attorneys[1] and notaries. This new law is the first significant permanent revision in a long time; however, important temporary measures were put in place for notaries as a result of the coronavirus Covid 19 pandemic in P.L. 2020, Ch. 26, April 14, 2020.
The coronavirus pandemic changed many things, but one particular change related to how documents were to be notarized during the pandemic. In some circumstances, hospitalized individuals wanted to execute important documents such as Wills and Trusts while being quarantined and unable to visit with lawyers and notaries for the execution of their legal documents.
Because of critical need during the pandemic, the New Jersey Legislature acted quickly to temporarily authorize “remote” notarization under P.L. 2020 Ch. 26. The temporary 2020 law allowed for “Remote Ink Notarization” (RIN), by which a notary could utilize “communication technology” such as Zoom, Skype or Microsoft Teams to notarize a declarant’s signature remotely. RIN requires a wet signature from the declarant, but allows the notary to be remotely “present” before the declarant at the time of signing. RIN can be contrasted with “Remote Online Notarization” (RON) where the signature itself is an electronic format, and the notarization takes place remotely. The temporary 2020 law was only designed to be in effect during the “public health emergency” and “state of emergency” brought about by the coronavirus pandemic, and was set to expire upon termination of the Governor’s emergency Executive Order 103.
The temporary 2020 law enacted several tests to verify an individual’s identity. Under the law, the parties must be able to communicate with each other simultaneously by sight and sound. The “communication technology” used during the remote notarization process must accommodate vision, speech or hearing impediment and should be live and interactive with direct communications. In the event that the notary did not personally know the declarant, the declarant needed to produce a passport, driver’s license or non-driver government identification and a second form of government identification. The law also allowed for a known third party to verify the identity of the remotely located individual. In addition, the notary was required to be able to reasonably confirm the record being notarized was the same document the individual was signing. Finally, under the temporary law, the notarial certification needed to indicate that the remote notarization took place under the temporary provisions and the notary was required to maintain the video file for ten years after execution.
The new law, P.L.2021 Ch. 179 will be effective on October 2, 2021 and carries forward most of the temporary rules on a permanent basis, including the use of “communication technology,” the requirement that the notary comply with “identity proofing” and the requirement to maintain a record of the remote notarization for a 10-year period after execution.
It should be noted that under the new law, like the former temporary law, the witnesses cannot be remote, only the notary. Thus, with respect to Wills, the two witnesses necessary to comply with the Will execution requirements outlined in N.J.S.A. 3B:3-2 must be physically present with the testator. In addition, as with the former law, Wills can only be remotely notarized by RIN, and not by RON.
While earlier drafts of the bill would have imposed continuing education requirements on notary publics (such as a six-hour course of study and other added continuing education requirements), the bill as finally enacted (the third reprint) deleted those requirements opting instead for the New Jersey State Treasurer to create a course and examination. These new education requirements will take effect in one year. Moreover, while there has always been a manual for notaries on the state website, the new law will require the State Treasurer to update it to comply with these added rules. The newly enacted education rules related to notary publics are not applicable to attorneys.
Under the new statute, a notary is also required to maintain a journal of notarial acts performed together with the time and date, type of notarial act, name and address of each individual for whom the notarial act is performed and information concerning the evidence of the identity of the individual as well as any fees charged. The new law modifies the fees that can be charged by a notary and takes steps to revise the stamp and certificate form (jurat) administered.
Electronic signatures had been permitted in New Jersey for twenty years under the “Uniform Electronic Transactions Act” N.J.S.A. 12A:12-1, et. seq. with respect to certain documents. However, a remote notarization is different from an electronic signature, and thus the Uniform Electronic Transaction Act did nothing to allow remote notarizations. Thus, the temporary 2020 remote notarization law, and thereafter the permanent law enacted in 2021, were necessary in order to allow notaries to remotely notarize documents.
Moreover, the Uniform Electronic Transactions Act explicitly excluded a variety of transactions[2], most notably, wills, codicils and testamentary trusts. N.J.S.A 12A:12-3 (b)(1). Those types of documents are not allowed to be electronically signed under the Uniform Electronic Transactions Act.
While there have always been concerns about the ability of a Last Will and Testament to be executed on an electronic record, there has been a movement towards the creation of electronic Wills to allow an e-signature on a Last Will and Testament. In 2019, the Uniform Law Commission proposed creation of the “Uniform Electronic Wills Act”. To date, the Electronic Wills Act has been adopted in Colorado, North Dakota, Washington State and Utah. Effective in July, 2020, Florida adopted an Electronic Wills Act.
Wills are unique documents because of not only the need to prove that a testator signed the document, but also because of the need to prove that it was executed while the testator was competent and not under the threat of undue influence or duress. There has been a trend to allow for less “formalities” in the creation of Last Wills and Testaments or Codicils in many states, including New Jersey. For example, the 2005 revision to the New Jersey probate code included the “Writing Intended as a Will” provision contained in N.J.S.A. 3B:3-3. It allows a writing “intended” as a Last Will to be accepted even if it is not executed in compliance with the more formal execution requirements of N.J.S.A. 3B:3-2. However, for the “Writing Intended as a Will” provision to apply it must be established by clear and convincing evidence that the decedent intended the document to constitute a Will, a revocation of the Will, an alteration of the Will, or a revival of a formerly revoked Will. One difficulty with the Electronic Wills Act is that it is much more difficult to memorialize the revocation of a previously executed electronic Will other than by timestamping a new Will which is accepted and revokes the prior electronic Will.
Thus, while Wills may still not be electronically signed in New Jersey, they can now be notarized remotely with the use of RIN. However, with the continued push throughout the country to allow for electronic wills, and New Jersey’s recent laws indicating a relaxation in the formality of wills (e.g., the remote notarization laws and the “Writing Intended as a Will” provision), we may see a change in New Jersey sooner rather than later.
One of the many changes that occurred throughout the country as a result of the coronavirus pandemic was the allowance in many states, including New Jersey, of the remote notarization of documents. What was once intended to be a temporary law in New Jersey has now become permanent. While it may be a year before the State Treasurer updates its records concerning the education requirements and revised manual to include remote notarization instructions, already the institution of remote online notarization (RON) of any documents and remote ink notarization (RIN) of Wills and Codicils is a welcome change.