In the current lockdown, it is understandable that, where needed, the formality of a witness to attest a signature might be a challenging requirement to fulfil. In this article, we explore possible alternatives to a witness sitting next to the signatory whilst signing a document.
In the case of an individual executing a deed, section 1(3), Law of Property (Miscellaneous Provisions) Act 1989 (the “Act”) states that the document will only be validly executed as a deed if it is signed, either by the individual in the presence of a witness who attests the signature, or at the direction and in the presence of the individual and the presence of two witnesses who each attest the signature. Furthermore, in the case of companies, to execute a document under section 44(2) (b) of the Act, a director of the company must sign on the company’s behalf in the presence of the witness, who attests the director’s signature. For options and formalities for virtual execution, please click here, and click here for how the formality of a signature can be complied within the current circumstances.
Interestingly, there is no statutory provision for the witness to be independent. Therefore, there is no prohibition on spouses or family members witnessing a signature. This however is not advisable, as the purpose of the witness is to provide unbiased evidence who signed the documents, what was signed and where it was signed. If this were to be the only possible option available due to the lockdown, it would be advisable to seek authority from the other parties involved.
There is also the consideration of whether the witness has to be physically present to attest the signature, or whether they can do it remotely, especially considering the Law Commission’s view that witnesses can attest a document by inserting their own electronic signature to the appropriate place.
In both the Act and the Companies Act 2006 the words used are “in the presence of a witness”. The Law Commission’s 2019 report on electronic execution expressed that these words require the physical presence of the witness. This is also the case even where both the person executing the deed and the witness of the signature are using electronic signatures.
Whilst the court has been willing to apply the doctrine of estoppel where the validity of the will has come under scrutiny due to the attesting witness not being physically present, our view is that the doctrine should not be relied on to ensure a document is legally enforceable.
Therefore, as the law stands, it appears that the witness has to be physically present in the same location as the executing party. The Law Commission has stated they are not confident whether the law permits remote witnessing e.g. through video link. Consequently, they have recommended to the Government in the 2019 report that an industry-working group be convened to consider technical and practical approaches to electronic execution with particular attention to remote witnessing. On 3 March 2020, the Lord Chancellor endorsed this conclusion.
In times of social distancing, a witness being physically present may prove to be difficult. A witness can be two metres away (thereby adhering to the government guidelines) and so long as the witness can still see the signing of the document they will be able to validly witness the signature. This is in accordance with 18th century case law under which, if a neighbour is close enough to see the signatory sign through a window or over a fence, they were considered to have validly witnessed the signature.
Finally, whilst a witness can attest the signature by signing at a later date, which may be helpful in the current circumstances it is likely that this is going to be of weaker evidential value and so is not recommended unless specific legal advice is taken.
There are other methods of executing a document, for example under the Companies Act 2006 a company can execute a document with the signature of two directors, thereby eliminating the need for a witness. Consider also whether the document needs to be executed as a deed or would a simple contract suffice? The document should be executed as a deed for example, if it is required by law, or in the event that there is no consideration, or to take advantage of the increased limitation period enjoyed by deeds of 12 years. In the current circumstances, if locating an adequate witness is proving difficult the alternative methods of executing the documents should be considered.
If you are considering one of the above methods for obtaining a witness, we advise that you seek legal advice to ensure an appropriate method is used.
For an overview of how we will still be able to complete your transaction during these unprecedented times, please click here or contact our commercial team by emailing firstname.lastname@example.org or call 01202 786183.