2.3 Signature Witnessing & Signatures by Mark

The 2020 law added the signature witnessing as a distinct notarial act and kept a detailed procedure for people who sign with a mark instead of a written name. Both appear on the exam because they are easy to confuse with acknowledgments and jurats.

Signature Witnessing Defined

Section 486.600(23) RSMo defines a signature witnessing as a notarial act in which an individual, at a single time and place:

1. appears in person before the notary and presents a document;
2. is personally known to the notary or identified through satisfactory evidence; and
3. signs the document in the presence of the notary.

There is no oath or affirmation, and the signer does not make the acknowledgment statement about voluntary signing. The notary still applies every condition in Section 486.645.1. The signer must appear to understand the transaction, act of his or her own free will, sign in letters or characters the notary understands, and communicate directly with the notary.

Certificate (Section 486.760)

State of Missouri
County (and/or City) of ________
On this ____ day of ______, 20__, before me, the undersigned notary,
personally appeared ________ (name of document signer),
  (personally known to me)
  (proved to me through identification documents, which were ________,)
  (proved to me on the oath or affirmation of one or two credible witnesses ...)
to be the person who signed the preceding or attached document in my
presence.
________ (official signature and seal of notary)

The statute describes this form as confirming that a signature "was affixed in the notary's presence without administration of an oath or affirmation."

Comparing the Three Signature Acts

A notary does not decide which of these acts a document needs. The document's wording, the signer, or the person receiving the document makes that choice; a nonattorney notary may not help select the document or transaction (Section 486.675.1).

Signatures by Mark (Section 486.645.2)

Some principals cannot write their names because of illiteracy, injury, or disability. Missouri lets them sign with a mark, such as an "X", and lets the notary notarize that mark when all four statutory conditions are met:

1. The mark is affixed in the presence of the notary and two witnesses disinterested in the document.
2. Both witnesses sign their own names beside the mark.
3. The notary writes below the mark: "Mark affixed by (name of signer by mark) in the presence of (names and addresses of two witnesses) and the undersigned notary pursuant to section 486.645, RSMo."
4. The notary notarizes the signature by mark through an acknowledgment, a jurat, or a signature witnessing.

Loading diagram...

Key points about the procedure:

• The two mark witnesses are not the same thing as credible witnesses. Mark witnesses watch the mark being made; credible witnesses vouch for identity under oath (Section 3.3). A principal identified by a current ID card still needs two mark witnesses.
• The witnesses must be disinterested in the document. A person who benefits from the document, such as a grantee on a deed, should not serve.
• The notary's notation includes the names and addresses of both witnesses, so the notary should collect that information before writing it.
• The principal must still be identified, appear to understand the document, and act freely. A mark is a substitute for a written signature, not for capacity or willingness.
• The notarial certificate for the act chosen (acknowledgment, jurat, or signature witnessing) is completed as usual, and the act is recorded in the journal.

Chapter 486 contains no proxy-signing procedure, so a notary should never sign a principal's name for him or her. If a principal cannot make even a mark, the notary should decline and suggest that the parties consult an attorney about other options.

Language of the Signature

Section 486.645.1(5) allows a notarial act only if the principal "signs using letters or characters of a language that is understood by the notary." A signature in a script the notary cannot read does not meet this condition; the mark procedure is the statutory way to handle a signer who cannot write a signature.

Exam Scenarios

• Employment form. A form requires that the employee's signature be witnessed by a notary but contains no oath. The notary identifies the employee, watches her sign, and completes a signature witnessing certificate. The maximum fee is $5.
• Stroke patient. A patient who understands the document but cannot write makes an "X" before the notary and two neighbors who have no interest in the document. Both neighbors sign beside the X, the notary writes the statutory notation with their names and addresses, and then completes an acknowledgment.
• Only one witness available. The statute requires two disinterested witnesses for a mark. With one, the notary must wait until a second disinterested witness is present.