Deal v. Deal – 11/30/2021

January 3, 2022

The Court of Appeals Division One holds that the statute governing notaries does not impose an independent duty of impartiality.

A son and his parents executed a power of attorney (“POA”) naming the son as the parents’ attorney-in-fact.  The POA was witnessed and notarized.  The witness was the notary’s mother.

Later, the son used the POA to execute a quitclaim deed on properties he shared with his parents.  The son transferred the properties into a trust for which he was grantor, trustee, and beneficiary.  The other beneficiaries were his mother and the POA notary’s sister.

The parents challenged the transfers, alleging the POA was invalid based on the notary’s relationship with the POA witness (her mother) and one of the beneficiaries of the subsequent quitclaim deed and trust (her sister).

The trial court invalidated the POA, finding the notary acted improperly as a partial witness in violation of A.R.S. § 41-328, which prohibits notaries from notarizing their own signature or that of anyone related to them by adoption or marriage.  It also prohibits a notary from notarizing a document if the notary is a party or an officer of a party, or if the notary will receive “any direct material benefit from the transaction that is evidenced by the notarized document.”  The trial court found the notary’s relationships created a “de facto conflict.”

The Court of Appeals accepted special action jurisdiction and reversed the trial court, finding the notary did not violate § 41-328.  First, the Court reasoned the statute only applies to relationships of “adoptions or marriage,” not blood and thus did not prohibit the notary from notarizing her mother’s signature on the POA.  The appellate court disagreed with the trial court’s imposing an independent duty of impartiality on the notary that would prohibit a “de facto conflict.”  The Court cited as support the statute’s legislative history, which revealed failed attempts to include blood and direct relatives to the statute.

Next, the Court found the notary had not received a “direct material benefit” from the POA—i.e., the document she notarized.  That the notary’s sister was a contingent beneficiary to the trust was of no import, because the notary did not notarize the quitclaim deed transferring the property to the trust.

Judge Perkins authored the opinion of the Court; Judges Bailey and Cruz joined.