More often, though, the problem is less obvious. Instead of a missing acknowledgement, the agreement contains a poorly drafted acknowledgement that may (or may not) contain the essential elements of the statutory acknowledgement. Anything even slightly short of the requisite components can be fatal to the validity of the acknowledgement, as the Galetta case recently demonstrated. In that case, the Court of Appeals concluded that the Husband’s signature on the pre-nuptial agreement was not properly acknowledged because the phrase “to me known and known to me” (the boilerplate language in effect at that time) was omitted, probably because of a typographical error. So, instead of Gary Galetta coming before the notary as someone who was, “to me known and known to me to be the person described in and who executed the foregoing instrument…,” he was merely “Gary Galetta described in and who executed the foregoing instrument…” Though it might seem impossible for the notary to have attested that Gary Galetta was the person who signed the agreement without having first identified him, the absence of language specifically spelling this out was enough for the Court of Appeals to conclude that the acknowledgement did not substantially comply with the requirements of Real Property Law 309-a.
All was not lost for Mr. Galetta, at least not yet. The Court of Appeals held out the hope that, if Mr. Galetta could prove that the notary actually did perform the essential tasks of an acknowledgement, that the defect in the language could be cured. Alas, Mr. Galetta turned out not to be so lucky. His notary could not remember him from thirteen years before. All he could say was that it was his custom and practice to “ask and confirm that the person signing the document was the same person named in the document” (Id. 21 NY3d at 197). In light of how exacting the language must be for an acknowledgement, it is somewhat ironic that this statement almost passed muster. But no – although evidence of a habit can be enough to prove that a specific act which can no longer be recalled was, in fact, performed, this notary’s testimony was not specific enough. Having failed to provide the detail of a specific procedure he followed to identify people he notarized, the Court rejected the notary’s statement, and held that Mr. Galetta could not cure the defective acknowledgement.
Other facts might have turned out differently. The take-away from Galetta is that a defective acknowledgement may be curable if it can be proved later that the notarization actually contained all of the elements of a proper acknowledgement, even if only some of them were written down. The notary can never be dispensed with entirely and the type of notarization must be an acknowledgement (not a “sworn to” oath taking, which is more common). It also helps if your notary can remember you years later, or at least has a well-defined habit of taking acknowledgements, assuming he or she does enough of them to even have such a habit. And then, it’s never enough to simply identify the signer. He or she must actually declare that it is his or her signature on the document.
Of course, it’s better to get it right the first time. Getting a form online, or relying on a paralegal or mediation service, may seem like a cost-effective option, but buyer beware. It could cost a lot more in the long run.