LEGAL PRINCIPLE: EVIDENCE LAW – Presumptions – Presumption of Due Execution of Power of Attorney
PRINCIPLE STATEMENT
The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public, or any court judge, magistrate was so executed and authenticated; the presumption of due execution embraces a presumption that the document was in fact executed by the persons mentioned thereon as the makers of the document; that the presumption is rebuttable gives the person alleging the contrary of what is presumed the liberty to prove it.
RATIO DECIDENDI (SOURCE)
"The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public, or any court judge, magistrate was so executed and authenticated. The presumption of due execution embraces a presumption that the document was in fact executed by the persons mentioned thereon as the makers of the document. That the presumption is rebuttable gives the person alleging the contrary of what is presumed the liberty to prove it."
EXPLANATION / SCOPE
Powers of attorney authenticated by notary public, judge, or magistrate enjoy statutory presumption of due execution. Presumption: Document purporting to be power of attorney with official authentication is presumed: (1) properly executed, (2) authenticated as stated, (3) executed by persons named as makers. Scope: “Due execution” includes: proper execution formalities, actual execution by named parties, and authenticity of authentication. This serves: facilitating reliance on notarized documents, recognizing official authentication’s significance, and avoiding requiring proof of execution for authenticated documents. Rebuttable presumption: Person challenging execution can prove contrary—presumption shifts burden but doesn’t prevent rebuttal. “Liberty to prove” contrary means: challenger can adduce evidence of forgery, non-execution, or fraudulent authentication. But burden is on challenger—party relying on power of attorney doesn’t initially prove execution (presumed), challenger must prove defect. This applies Principle 599: defendant alleging forgery/non-execution bears evidential burden despite plaintiff’s overall legal burden. The presumption: eases proof for parties relying on authenticated powers of attorney, recognizes official authentication’s reliability, while permitting rebuttal when evidence of irregularity exists. This balanced approach facilitates commerce (presuming validity of authenticated documents) while protecting against fraud (permitting rebuttal proof).