Yes. There is a difference between a notarial signature lying down or sitting

Yes. There is a difference between a notarial signature lying down or sitting

Doron Afik, Esq.
August 21, 2022

A person lies in the hospital and summons a notary public to sign a notarial will or transfer his assets to others later in his life through a power of attorney. The notary arrives, gets the impression that the person is qualified to sign the document and have it signed. Is the notarial document valid? Not necessarily.

The verification of a person's signature by a notary has a legal meaning beyond a normal signature verification. In order for a person to sign a notarial document, the notary is required to verify that the person is of legal capacity to sign the document, that he is convinced that the person is acting of his own free will and that he fully understands the meaning of the action, and if the person to perform the action is hospitalized or confined to his bed, the notary is required to receive a medical certificate in the prescribed format under the law and issued on the day the action was taken. Accordingly, a document signed in front of a notary will also usually be given the strongest validity and will be respected by the Courts and other state authorities.

But what happens when the notary does not comply with the legal requirement? Thus, for example, a verdict given by the Israeli Supreme Court in January, 2005, dealt with an elderly man who was hospitalized at the Tel Aviv Sourasky Medical Center – Ichilov Hospital and who six days before his demise signed before a notary a document entitled "Irrevocable General Power of Attorney" in which he empowered his sister to execute on his behalf and in his place, a long line of legal actions. After his demise, the sister transferred an apartment and a shop to her own name. The Supreme Court found that the power of attorney, as well as the transfer of ownership, are invalid.

In contrast, when it comes to a notarized will, the Israeli Supreme Court held that when it comes to a notarial will made without a medical certificate being presented to the notary public, the non-presentation of the certificate does not by itself result in the invalidity of the will, but imposes on the party requesting to rely on the will an obligation to prove that the deceased did intend for the document to be used as a will regarding the distribution of property after such person’s demise. That specific case dealt with a person who was hospitalized at the Tel Hashomer Hospital and a week after he signed a notarial will, the director of the neurology department in Tel Hashomer, where the deceased was hospitalized at the time of execution of the will, issued a certificate according to which that person was hospitalized in the department and he confirms "that he is fully conscious and of clear mind and has been like that at least for two weeks." The notary public, in that case, arrived at the hospital, notarized the person's will, and when he did not see a medical certificate, he requested that one be given to him and it was given to him only a week later. The Court found that the notarization was therefore defective and while the will is not invalidated just because of that, the notarization no longer proves that the person signed the document with the intention of signing a will.

We note that Israeli caselaw expanded the term "confined to his bed" so that even when it comes to a person who has difficulty getting around or an elderly person who, because of his age or illness, finds it difficult to leave his home, it is necessary to obtain a medical certificate before making a notarial will. However, there is no need for a doctor's certificate when it comes to an elderly person who comes to the notary's office and in the notary's conversation with him, the notary got the impression that that person understands his actions and is of a clear mind.

Thus, because notarial documents are designed to create legal certainty, and certainly when it comes to an elderly person or a sick person, it is important to ensure compliance with the rules in order to avoid family conflicts in the future, which may sometimes cause the destruction of the family and a result completely opposite to what that person intended in his life.