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25th June 2020

Stephen Morrall and Philippa Kum discuss witnessing a deed remotely

Stephen Morrall and Philippa Kum discuss witnessing a deed remotely

Can a witness be present remotely when executing a deed?

COVID-19 has had profound impacts on the way businesses operate. To ensure compliance with social distancing guidelines, the home now also functions as the office, with social interaction between colleagues and clients operating through virtual means. These changes to the working environment have highlighted deficiencies in the legal practicalities of witnessing a signature to a deed.

Formality requirements of deeds

A variety of personal and commercial transactions require a deed, most notably when making a Will, and when an interest in property is created or transferred. The execution of a deed requires the additional formality of an individual signing “in the presence of a witness who attests the signature” (s.1(3) Law of Property (Miscellaneous Provisions) Act 1989). The execution of wills must take place in the presence of two witnesses (s.9(c) Wills Act 1837).

The current legal position

The law is beginning to adapt to electronic signatures. The EU Regulation No. 910/2014 (the eIDAS Regulation) became directly applicable in all EU member states on 1st July 2016 and defines three types of electronic signature, the most onerous of which, the qualified electronic signature, is potentially the most relevant to the execution of deeds. It involves an individual applying an electronic signature using an electronic signature creation device which is certified by an EU Trusted List service provider who is recognised in all member states. The purpose of the eIDAS Regulation is to create a framework operating consistently through member states for validating electronic signatures.  A well-known example of an EU Trusted List service provider is DocuSign, whose system allows users to upload and send documents containing electronic signature fields. The eWitness feature enables a witness who is present with a party executing to apply his or her signature electronically, but this cannot yet be done remotely.

Unfortunately, the eIDAS Regulation does not address the requirement of English law that a witness to a deed must be present at the signing. The Law Commission has said that, although legislation does not stipulate physical presence, virtual witnessing via video conferencing technology such as Skype or Zoom does not sufficiently satisfy the legislation as currently drafted (Electronic Execution of Documents, 2019). As a result, the Law Commission recommended the convening of an industry working group to explore legislative reform that enables virtual witnessing to comply with the laws of deed creation.

The uncertainty is compounded by the lack of clear and binding authority on the topic of physical versus virtual presence. In Man Ching Yuen v Landy Chet Kin Wong (ref 2016/1089), the First-Tier Tribunal (Property Chamber) considered the issue in the context of a solicitor witnessing the parties signing a transfer deed via Skype. In the absence of judicial authority, the tribunal judge took note of the 2019 Law Commission report, and decided that a court might conclude that the deed was not validly executed as remote presence via video call may not amount to physical presence with the signatory. Unfortunately, the tribunal did not actually decide the point and definitive ruling is still pending.

In summary, recent case law and literature suggest that, were an English court to consider the matter, it would be likely to rule that the virtual witnessing of a deed by a person not physically present would not constitute a valid execution of the deed. The issue is crying out for further judicial guidance, but who would want to fund the next fascinating test case?

Challenges in the time of Coronavirus

Although lockdown may be easing tentatively, the continuation of social distancing means individuals may still struggle to find someone to be physically present to witness their signature. They could resort to creative solutions: perhaps the witness could watch someone sign their deed through a closed window, wait for the document to be left on the outside window sill, and place their signature accordingly. Of course, government guidance must be adhered to: keep a 2 metre distance at all times, do not share the pen and both parties must thoroughly wash their hands before and after the interaction.

Finally, one must recall that the purpose of a witness is that he or she can be called upon to provide independent and unbiased evidence of a document’s due execution, if this were to be contested in the future. Therefore, whilst it is not unlawful, it is good practice not to ask family members or those in the same household to act as witnesses. One would need to ask a neighbour or a bank clerk, for example, to do this.

If English law permitted the virtual witnessing of signatures, it would be much easier to arrange for the due execution of deeds.  For example, an individual could video call their lawyer, sign the document while on camera, and send the document containing their wet-ink signature by post for their lawyer’s attestation. Common sense says that, whilst not physically present, the lawyer has witnessed the signature, and the deed has been validly executed. However, the law properly rejects this method as, without some kind of objective certification, there are too many opportunities for abuse.

In summary, the COVID-19 pandemic provides compelling reasons to follow up the Law Commission’s recommendations for a review of the law relating to the execution of deeds. The current formalities of witnessing create real difficulties for parties. As we transition into the post-COVID era, one hopes that the law will not continue to lag behind the evolution of working practices and our growing reliance on technology.