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Proof of Execution

Proof of Execution

A proof of execution by a subscribing witness is a notarial act that can be used in situations when a signature on a document must be notarized, but the person who signed the document is unable to personally appear before the notary.

For a proof of execution, a person called the subscribing witness either watches the principal sign the document or takes the principal’s acknowledgment of having signed the document. The subscribing witness then signs their own name on the document, at the principal’s request and in the principal’s presence. Lastly, the subscribing witness brings that document to the notary on the principal’s behalf, and verifies under oath or affirmation that they took the necessary steps to verify that the principal’s signature is genuine and willingly and freely made.

When executing a proof of execution by a subscribing witness, the notary public certifies that the signature of the person who did not appear before the notary is genuine and willingly made based upon the sworn testimony of the subscribing witness.

A proof of execution by a subscribing witness is used when the principal signer is unavailable to appear before the notary public. Because proofs are easily susceptible to fraudulent use, proofs should be used as a last resort.

When performing a proof of execution, the notary public certifies to three things:

  1. The subscribing witness personally appeared before the notary public on the date and in the county indicated on the notarial certificate.
  2. The notary public identified the subscribing witness through personal knowledge, ID documents, or a credible witness.
  3. The notary public administered an oath or an affirmation to the subscribing witness.

Since the notary is relying completely upon the word of the subscribing witness to vouch for the absent principal, it is best for the subscribing witness to be someone who is personally known to the notary.

A proof of execution by a subscribing witness is usually regarded as an acceptable substitute for an acknowledgment.

The subscribing witness should have no personal beneficial or financial interest in the document or the transaction. For example, a notary should never rely upon a subscribing witness who presents for notarization a power of attorney that names the same witness as attorney in fact.

Sample Oath for a Subscribing Witness:

Do you solemnly swear that you know (name of signer) to be the individual who executed this document, that you saw (name of signer) sign their name to this document and/or that they acknowledged to you having executed it for the purposes therein stated, and that you signed your own name to the document as a witness thereto, so help you God?

New York law does allow the subscribing witness to be positively identified by the notary public using ID documents or a credible identifying witness.

Under New York law, the subscribing witness must personally know the signer.

Real Property Certificate for Proof of Execution

When executing a proof on a document which affects real property in New York, a notary public must use the following certificate, or a substantially similar certificate. The form must state the place of residence of the subscribing witness.

State of New York

County of (county)

On the (day) day of (month) in the year (year) before me, the undersigned, personally appeared ___, the subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he/she/they reside in (address) (if the place of residence is in a city, include the street and street number, if any, thereof); that he/she/they know ___ to be the individual described in and who executed the foregoing instrument; that said subscribing witness was present and saw said ___ execute the same; and that said witness at the same time subscribed his/her/their name as a witness thereto.

(Signature of Notary Public)

(Notary Seal, if any)

(Other required information)

For a document which affects New York real property that is executed by a proof of execution before a notary of another state, New York law provides a proof certificate for optional use for the out-of-state notary.

When executing a proof on a document that does not affect New York property, affects property in another state or does not affect property at all, New York notaries should use any other appropriate customary or statutory proof form. Any form used must state the subscribing witness’s residence address.