An Acknowledgment is not an Oath, and Vice Versa

November 7, 2016 § Leave a comment

This is an acknowledgment:

Personally appeared before me, the undersigned authority in and for the said county and state, on this the 4th day of October, 2016, within my jurisdiction, the within-named Joe Doe, who acknowledged that he executed the above and foregoing instrument.  (MCA 89-3-7)

This is an oath:

Personally appeared before me, the undersigned authority in and for the said county and state, Jane Doe, who, after by me being first duly sworn, stated on oath that the matters and things set forth in the foregoing Petition are true and correct as therein stated.

Each serves an important function, but their functions are entirely different, and they are not interchangeable.

If you have to file an affidavit, such as an affidavit of known creditors, or an affidavit of diligent inquiry for publication process, or if you must file a sworn pleading in an estate, an acknowledgment simply will not do the job. All of those call for swearing on the part of the maker, and there is no swearing in an acknowledgment.

But, you may say, “It’s notarized; that should do it, right?” Wrong. All the notary is doing is witnessing. In one instance, she is witnessing a signature (acknowledgment). In the other she is administering and recording an oath. It’s two distinctly different things.

I am bringing this to your attention because I have had to send lawyers scurrying back to the staring line when I look at the document that is styled “Affidavit,” which requires an oath, but on closer examination includes only an acknowledgment. Without a swearing, it’s not an affidavit.

Make sure your office staff understands the difference and selects the correct one to meet the function. It can save you time, money, and embarrassment.

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