Dec272025
Probate Q&A Series

Do I have a claim against a notary who notarized a will without witnessing the signature, and is it better to pursue that now or after the probate dispute? – North Carolina

Short Answer

Potentially, yes—under North Carolina law, a notary generally must have the signer personally appear and either sign in front of the notary or acknowledge an already-made signature. If a notary notarized a will-related affidavit or acknowledgment without that personal appearance or observation, that can support a civil claim, but liability often turns on provable damages and whether the notarization actually affected the will’s validity or the probate outcome.

As for timing, many cases focus first on the probate dispute (the “caveat”) because it determines whether the challenged will controls and can clarify what damages, if any, exist. Still, filing a separate civil claim earlier can make sense in some situations to preserve evidence and avoid statute-of-limitations problems, so counsel usually evaluates both timelines together.

Understanding the Problem

In North Carolina probate disputes, a common question is whether a person can sue a notary public who notarized a will or a self-proving affidavit even though the notary did not actually witness the signature or have the signer appear. A second, related question is whether that type of claim should be filed immediately or whether it should wait until the probate dispute over the will’s validity is resolved.

Apply the Law

North Carolina distinguishes between (1) the legal requirements for a valid will and (2) the role a notary often plays in making a will “self-proved” for easier probate. A will can be valid even if it is not notarized at all, as long as it was properly signed and witnessed. But if a notary notarized a self-proving affidavit or acknowledgment without following the required steps, that improper notarization can create problems in probate and can also create exposure for the notary if the improper act caused legally recognizable harm.

Key Requirements

  • Underlying will-execution rules: For an attested written will, the testator must sign (or direct another to sign in the testator’s presence) and must signify to two competent witnesses that the document is the testator’s will; the witnesses must sign in the testator’s presence.
  • Proper notarial act (personal appearance/acknowledgment): For an acknowledgment, the person whose signature is being acknowledged must personally appear before the notary and acknowledge signing the document.
  • Causation and damages: A civil claim against a notary usually rises or falls on whether the improper notarization caused a concrete loss (for example, extra litigation costs, a delayed estate administration, or a change in who inherits) rather than a technical defect that had no practical effect.

What the Statutes Say

Analysis

Apply the Rule to the Facts: No specific facts are provided, so two narrow examples show how the answer changes based on one variable: (1) If the will was properly signed and witnessed under North Carolina’s will-execution statute but the notary merely mishandled the self-proving affidavit, the will may still be provable through witness testimony or other probate proof, and damages against the notary may be harder to show. (2) If the notarization was used to convince the Clerk of Superior Court to accept a will as “self-proved” even though required steps did not happen, and that led to a contested probate with extra expense or delay, a notary claim may fit better because causation and damages are clearer.

Process & Timing

  1. Who files: In the probate dispute, an interested person files the will contest (a caveat). Where: The caveat is filed with the Clerk of Superior Court in the county where the will was probated (the estate file). What: The filing is a caveat to the will; after filing, the matter is transferred for jury trial in Superior Court. When: The caveat generally must be filed within three years after the will is probated in common form.
  2. Separately, a notary claim: A civil claim against a notary is typically filed as a separate civil action in North Carolina trial court, and it may proceed before, after, or alongside a caveat depending on strategy and the risk of missing deadlines. In some cases, courts may pause (hold in abeyance) one matter while another is resolved, particularly if the probate ruling will clarify key issues like damages.
  3. Practical sequencing: Lawyers often evaluate whether to (A) focus first on the caveat to determine which document controls the estate and then pursue third-party claims with that outcome in hand, or (B) file the civil action earlier to preserve evidence and avoid limitations problems while asking the court to coordinate or pause proceedings to reduce inconsistent rulings.

Exceptions & Pitfalls

  • A notary mistake does not automatically invalidate a will: North Carolina requires two competent witnesses for an attested written will; notarization usually relates to making the will “self-proved,” not to basic validity.
  • Damages can be the hardest part: Even if a notary violated proper procedure, a claim still usually needs proof that the violation caused a real loss. If probate could be completed by calling the witnesses or using other proof, the notary’s role may not be the legal cause of the outcome.
  • Do not miss separate limitation periods: The caveat has its own statute of limitations, and civil tort claims can have different limitation rules depending on the theory (for example, negligence versus fraud-based claims). A timing plan should account for both tracks.
  • Evidence can disappear quickly: Notary journals, employer records, electronic communications, and witness memory can become harder to obtain over time. Early preservation steps may matter even if the lawsuit is filed later.

Conclusion

In North Carolina, a notary generally must have the signer personally appear and acknowledge signing (or sign in front of the notary) for an acknowledgment or sworn certificate to be valid. If a notary notarized a will-related affidavit or acknowledgment without that, a civil claim may exist, but it often depends on proving that the improper notarization caused measurable harm. A caveat must generally be filed within three years after probate, so the most important next step is to confirm the probate date and file the caveat with the Clerk of Superior Court on time.

Talk to a Probate Attorney

If a will’s notarization is being questioned and a probate dispute is developing, an attorney can help assess whether the notarization issue affects the will’s proof, what claims may exist against third parties, and how to sequence filings without missing deadlines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.