Notaries Public Manual
Malaysian Lay Person’s Guide
This publication is intended to provide broad guidance and general information
for an ordinary layman, who requires the services of a Notary Public in
Malaysia, and who is seeking to better understand the role and responsibilities
of a Notary Public.
1. Background and History
Notaries Public (also called "notaries", "notarial officers", or "public
notaries") hold an office which can trace its origins to the ancient Roman
Republic, when they were called scribae ("scribes"), tabelliones forenses, or
personae publicae. [Black's Law
Dictionary, 10th ed. (St. Paul MN: Thompson Reuters, 2014), s.v "notary
public".] In Malaysia, a Notary Public is appointed (upon application
submitted by an advocate and solicitor of the High Court of Malaya (in
continuous active practice for no less than 15 years), with the Bar Council of
Malaya support) by the Attorney General of Malaysia under the Notaries Public
Act 1959 (Act 115), for a tenure of two years, and to practise within a
particular designated territory. This is to ensure that a Notary Public has
substantial experience in drafting and execution of legal documents and is
capable of carrying out his duty professionally.
2. Notarial Guidelines, Documents & Precedents
Notaries Public use the following broad guidelines when preparing certificates &
documents:
(a)
Use in-house developed proven processes and
precedents, and/or where required, use good reputable precedents from books such
as
Brooke’s Book on Notaries;
(b)
Use simple, clear and unambiguous English words, and short sentences, as far as
possible.
(c)
Check if specific format is required, and draft words, provide supplements, or
include documents to fulfill the requirements at the ultimate destination of the
documents.
3. Powers & Functions
The powers and functions of the Notary Public include the following:
(a)
Powers and functions exercised by notaries public in England (page 1119 of Vol
23 of Halsbury’s Statues of England), which are:
i.
To draw or prepare any instrument relating to any real or personal estate, or
any legal proceeding;
ii.
To draw or prepare any instrument of transfer or charge relating to Real
Property;
iii.
Take instructions or draw or prepare any papers on which to found or oppose a
grant of probate or of letters of administration;
iv.
Take
the declaration of an attesting witness to prove the execution of any will or
codicil, deed, or instrument in writing;
v.
Preparation of “ship’s protest” and protests concerning demurrage and other
commercial documents.
(b)
Authenticate a Power of Attorney (Section 3 of the Powers of Attorney Act 1949
(Act 424))
(c)
Take and receive Statutory Declaration for use outside of Malaysia (Section 2 of
the Statutory Declaration Act 1960 (Act 783), read together with and subject to
Section 4 of the Notaries Public Act)
(d)
Notarization of Public Document (with the intention of
pursuing the Apostille Procedure, i.e. issue by the Department of Foreign
Affairs of certain countries of Apostille Certificate (stamped or attached to
the Public Document)), in lieu of Legalisation (in accordance with and for
countries which have ratified
the Hague Convention -
Malaysia is not a party to the treaty and therefore
cannot pursue apostille procedures, and have to resort to a more complicated
legalisation procedure)
(e)
Notarization of Document (with the intention of
and as part of the process of pursuing Legalization Procedure) (for countries
like Malaysia not adhering nor having ratified
the Hague Convention)
Note:
A Notary Public does not have the power to administer, take or attest any oath
or affirmation (affidavit or declaration) executed for use within Malaysia. This
should be administered by a Commissioner for Oaths.
4. Duty of Care & Formalities
Notwithstanding the fact that Malaysia does not codify the duty of care of a
Notary Public, he should be expected to exercise such reasonable skill, care and
diligence which is typically employed by such persons engaged in his profession.
Therefore, persons requiring the service of a Notary Public should respect his
views, process and procedures in dispensing with his duty.
The formality: “An act is an instrument recording the due execution of a deed,
contract or other writing, or verifying some fact or thing done. An authentic
act is an act executed in accordance with legal requirements and certified by
the proper officer. A notarial act is the act of a notary public, authenticated
by his signature and official seal, certifying the due execution in his presence
of a deed, contract or other writing, or verifying some fact or thing done in
his presence or of which the notary has certain knowledge. Thus, any
certificate, attestation, note, entry, endorsement, or instrument made, or
signed and sealed by a notary public in the execution of the duties of his
office is a notarial act.” (Brooke’s Book
on Notaries – 12th Ed, pg.65). The essential contents are:
(a)
The title
(b)
Date and place of execution
(c)
Names of Notary Public, parties, and witnesses
(d)
Statement of fact of parties and reason for appearing before Notary Public
(e)
Document or transaction which is subject of the act
(f)
Signature of party(ies) and witness(es)
(g)
Signature and Seal (and where required, the Bindery) of Notary Public
5. Chain of Authentication / Legalisation (documents for use outside of Malaysia)
Ministry of Foreign Affairs of Malaysia
:
Ministry of Foreign Affairs of Malaysia
Wisma Putra, No 1, Jalan Wisma Putra
Precinct 2, 62602 PUTRAJAYA
Phone | +603-8000 8000
6. Notarial Register
There is no legal requirement in Malaysia for a Notary Public to maintain a
register. Many, if not all Notaries Public do, however, and may require that
those seeking the service of a Notary Public sign in a register book or a
document evidencing that attendance did in fact take place.
7. Notary Public Checklist
(a)
Verification of Deponent’s Identity:
Deponent asked to identify himself, and produce photo identification, preferably
the identification document referred to in the document to be notarized, i.e.
passport or national identity card (for Malaysians).
(b)
Deponent’s Understanding:
Ensure deponent understands the deposition, affidavit or declaration, and that
the exhibits referred to are correctly attached.
(c)
Competence:
Ensure deponent is competent to depose to the document.
(d)
Nature of Document:
Ensure that the document is one which a Notary Public is empowered to notarize.
(e)
Notarial Certificate:
Where a notarial or attestation certificate is required, ensure that the person
in attendance has provided the necessary form and substance of such certificate
or where one is drafted, then the person in attendance is satisfied with the
form and substance of such certificate.
(f)
Translation:
Where a translation of any document is required, ensure that the person in
attendance is satisfied with the translation and the form and substance thereof.
The Notary Public may insist that the translation into a foreign language be
performed by an approved, authorized or certified translator chosen by the
Notary Public – this is to ensure that the Notary Public is confident that the
translated document being notarized is the correct or most accurate translation
of and corresponds to the original document.
(g)
Stamp:
Notary Public will ensure that the stamp of validity is placed on the document
to be notarized.
(h)
Seal:
Notary Public will ensure that his notarial seal is affixed on the document to
be notarized. It is important that the document has adequate blank space for the
Notary Public to place his stamp and affix his notarial seal.
(i)
Register:
Notary Public may require that the deponent or person in attendance sign to
signify attendance in person. This is important for foreign verification
purposes which will enable the Notary Public to validate the attendance of the
deponent or confirmation of the authenticity of the notarization.
(j)
Company Documents:
Where documents are executed by a Company under it’s common seal or by it’s
authorized attorney or representative, the Notary Public may require proof that
a resolution has been passed by the Company under the Company’s constitution
authorizing both the affixation of the common seal or the appointment of an
authorized attorney or representative to execute such document for and on behalf
of the Company. Where Company documents are referred to, the Notary Public may
conduct a Company Search with the Companies Commission of Malaysia and/or ask
that the Company’s company secretary certifies the document, to ensure that the
documents notarized are indeed current and/or proper.
8. Fees
The fees chargeable by a Notary Public are prescribed under the Notaries Public
(Fees) (No. 1) Rules 1981 (published as PU(A) 198/81).
9. Meaning of Terms
(a)
“Quod Veritatem attestor”
means ‘The Truth attest’ or ‘Attest to the truth’, True and accurate
representation of the facts; To certify by a signature that the signer has been
present at particular writing/signings.
(b)
“To All To Whom These Presents Shall Come”
means "to all those who receive this document, to whom it may concern", and
indicates that the document is addressed not to a specific person or persons but
to anyone affected by what the document says. This formula has been used for
centuries in English at the beginning of deeds and other legal documents. It is
formal and archaic, and is normally a sign that what follows is legally
important and binding.
(c)
“Subscribe”
means to write underneath; to put a signature at the
end of a printed or written instrument. A subscribing witness is an individual
who either sees the execution of a writing or hears its acknowledgment and signs
his or her name as a witness upon the request of the executor of the agreement.
10. References
(a) Notaries Public Act 1959 (Act 115)
(b) Powers of Attorney Act 1949 (Act 424)
(c) Statutory Declarations Act 1960 (Act 783)
(d) Halsbury's Statutes of England (3rd Ed. Vol 23)
(e) Oaths and Affirmations Act (Act 194)
(f) Notaries Public (Fees) Rules
(h) Certificate of Notary Public (Liew Li-Hian)
11. Links
Australian Tax Office - Certification Outside of Australia for Australian Residents
12. Verification of Identity
We are appointed by a number of Australian financial insitutions and banks and have fulfilled the requirements of most institutions to enable us to undertake the task of identity agent to perform the VOI (Verification of Identity) for and on behalf of such institutions, namely:
(a) professional indemnity insurance for an insured amount with an approved insurer of at least AUD1.5 million (equivalent to approximately RM4.6 million) per claim (including legal costs);
(b) an aggregate insured amount with an approved insurer of not less than AUD20.0 million (equivalent to approximately RM61 million);
(c) excess per claim of no greater than AUD20,000 (equivalent to appproximately RM61,000).
13. Preparation for Notarization
Kindly ensure that you make the following preparations for your documents to be notarized:
(a) Make an appointment with our notary public by calling our office at the number below, indicating whether you would like to attend at our notary's office, or would like our notary to attend at your nominated venue;
(b) Ensure that deponent, or person(s) signing is/are present, and possess with him/them his/her/their original identity card (kad pengenalan for Malaysian citizens) or passport (for foreign nationals) and ensure that documents requiring exection and signed in front of the notary public;
(c) Inform the notary public if there are any special requirements, i.e. if any document require official translation or if any document requires a notarial certificate (this requires prior notice as the notary public will have to prepare this before the appointed time);
(d) Ensure that all documents requiring witnessing / attestation are printed and ready for execution and witnessing / attestation / notarization;
(e) Ensure payment for notary services is ready to be made at the end of the notarization process.
Liew Li-Hian, Notary Public
_________________________________
Copyright © 2021/2022, Liew Li-Hian, Notary Public (Wilayah Persekutuan, Kuala
Lumpur, Malaysia)