San Diego Notary

Proof of Execution by a Subscribing Witness

If a person, called the principal, has signed a document, but does not personally appear before a notary public, another individual can appear on that principal’s behalf to prove the execution by the principal. That person is called a subscribing witness. (Civil Code section 1195) NOTE: A proof of execution by a subscribing witness cannot be used in conjunction with any quitclaim deed, grant deed document (other than a trustee’s deed or a deed of reconveyance), mortgage, deed of trust or security agreement. (Government Code section 27287 and Civil Code section 1195(b))

The requirements for proof of execution by a subscribing witness are as follows:

  • The subscribing witness must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness (Civil Code section 1197); and
  • The subscribing witness must say, under oath, that he or she either saw the principal sign the document or in the presence of the principal heard the principal acknowledge that he or she signed the document (Code of Civil Procedure section 1935, Civil Code section 1195); and
  • The subscribing witness must say, under oath, that he or she was requested by the principal to sign the document as a witness and that he or she did so (Code of Civil Procedure section 1935, Civil Code section 1195); and
  • The notary public must identify the subscribing witness based on personal knowledge or the identity of the subscribing witness must be proven to the notary public by the oath of a third person (credible witness) who personally knows the subscribing witness. The credible witness must be personally known by the notary public (Civil Code sections 1195, 1196); and
  • The subscribing witness must sign the notary public’s official journal. (Government Code section 8206(a)(2)(C)) In addition, if the identity of the subscribing witness was established by a credible witness, then the credible witness also must sign the notary public’s official journal. (Government Code section 8206(a)(2)(D))

NOTE: Paper identification cannot be used to establish the identity of the principal, subscribing witness or credible witness. This is because the identity of the principal must be established by the oath of the subscribing witness who personally knows the principal. The identity of the subscribing witness must be established by the notary public’s personal knowledge of the subscribing witness or the oath of a credible witness who is known personally by the notary public and who personally knows the subscribing witness.

The following scenario provides an example of how proof by a subscribing witness may be used:

The principal, Wayne, needs to have his signature on a document notarized. Wayne is in the hospital and, therefore, cannot appear before Sally, the Notary Public, in order to get his signature notarized. Brian, a longtime friend of Wayne, is at the hospital visiting Wayne. Wayne asks Brian to sign the document as a Subscribing Witness and Brian does so. Wayne could have either signed the document in Brian’s presence or have signed it prior to Brian’s arrival. If the document was signed prior to Brian’s arrival, Wayne would need to acknowledge to Brian that he, Wayne, had signed the document. Wayne gives the document to Brian to take to Sally, who personally knows Brian. Sally places Brian under oath. Under oath, Brian swears or affirms that he personally knows Wayne, he saw Wayne sign the document (or heard Wayne acknowledge signing the document), Wayne requested that he, Brian, sign as a witness and he, Brian, did so. Brian signs Sally’s notary public journal as the subscribing witness. Sally completes the Proof of Execution Certificate and attaches it to the document. She then completes her notary public journal entry. (Sally must identify Brian through personal knowledge. No paper identification is permitted.) Brian takes the document back to Wayne.


Links: