Stephen Morrall and Cordelia Smith examine executing deeds remotely in the FTAdviser

This article was originally published in the FTAdviser and can be accessed here. 

Executing deeds: can a witness be present remotely?

With so many people working from home at present and communicating and doing business by entirely virtual means, it is increasingly apparent that some areas of the law lag behind the realities of daily life and the capabilities of modern technology. This is demonstrated by something as seemingly simple as witnessing a signature to a deed.

A deed is a document that, among other requirements, must be executed with an enhanced degree of formality in the presence of a witness – in order for it to be enforceable. Deeds are commonly used in a variety of personal and commercial transactions and are required for wills and most property matters. To validly execute a deed, an individual must sign a deed in the presence of a witness who attests the signature (s. 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989).  Wills must be executed in the presence of two witnesses (s.9(c) Wills Act 1837).

The current legal position is that a witness must be physically present when the deed is signed. Attendance via Skype, Zoom or any other video calling or conferencing technology does not satisfy the ‘presence’ requirement, according to the Law Commission’s 2019 report on the Electronic Execution of Documents.

One can imagine that in times like these when so many people are self-isolating or practicing extreme social distancing to minimise the spread of Coronavirus, an individual needing to execute a deed may be hard-pressed to find a witness who can be physically present to witness his/her signature.   A variety of more or less practical creative solutions suggest themselves.  One could take inspiration from people who have been greeting elderly relatives through closed windows, and watch someone sign a deed through the window, step back while they put the document on the outside window sill, and then sign to attest it (using a different pen, of course).  Or perhaps someone living in a flat could sign a deed on their own balcony, witnessed by someone on a neighbouring balcony although flinging the deed across the gap might be a challenge too far in these already difficult times.

The difficulty of finding an appropriate witness is compounded by the need for the witness to be independent and able to provide, if necessary, unbiased evidence of the timing and circumstances of the deed being signed. For this reason, though it is not actually unlawful, it is not advisable to ask family members to act as witnesses but better to rely on neighbours or disinterested third parties.

At present, this is likely to be problematic given the social distancing measures in place in many parts of the world.  However, if virtual witnessing of signatures was permitted by English law, an individual could, for example, video call their lawyer, sign the document while on camera and then send the ‘wet ink’ document by post (or a scanned copy by email, if permitted) to their lawyer for attestation.

The physical presence requirement was recently considered in the Law Commission’s report Electronic Execution of Documents published on 4th September 2019. The report confirmed that, perhaps counterintuitively, while a deed or other document can be signed electronically and the witness may attest the signature electronically, the witness must still be physically present at the time of signature.  Even where software such as DocuSign allows for deeds to be signed and witnessed electronically, the witness must still be physically in the same room as the signatory.  The Law Commission recommended that the Government set up an industry working group to further consider the matter, including exploring solutions to practical and technical obstacles to video witnessing and how to prevent fraud.

The legal position has rarely been explored in case law and there is no binding authority. The First-Tier Tribunal (Property Chamber) in the recent case of Man Ching Yuen v Land Chet Kin Wong (ref 2016/1089) considered, in the context of a dispute over an allegedly forged transfer of property, whether it is possible to validly witness the execution of deeds remotely (via Skype). The tribunal considered the point on the basis of whether Yuen had a realistic prospect of success in persuading a court that the physical presence of a witness is required for valid execution and concluded that there was a realistic prospect of success, i.e. a witness physically present with the signatory would be required. The Tribunal did not need to take the point any further, however, and the decision provides no clear authority.

Although both acknowledge that there are uncertainties around the validity of remote witnessing, Yuen v Wong and the Law Commission report suggest that, were an English court to decide this point at present, it would be unlikely to determine that witnessing via technological means satisfies the physical presence requirement. It remains to be seen how long it will take for the law to catch up with the enormous shift in working practices and living arrangements caused by the Coronavirus pandemic and our growing reliance on technology.