Government measures regarding social distancing have made it increasingly difficult for legal documents to be properly executed.
Most contracts only require a single signature and do not pose any major practical problems. However, other legal documents may require a number of signatures often involving a witness that must be physically present who is also required to sign the same document and insert name and address details. These documents are normally deeds and wills.
Property deeds are likely to include transfers, leases, mortgage deeds and other deeds including surrenders and re-grants.
Pursuant to Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 each individual must sign “in the presence of a witness who attests the signature”.
Land Registry, who are responsible for maintaining registered property titles, will look to see that a witness has signed the deed, that their signature clearly records the witnessing of the signing of the deed by each individual concerned and that the name and address of the witness is legible on the deed.
The same witness may witness each individual signature but each signature must be separately witnessed.
A party to a deed cannot witness the signature of another party to the same deed (the rule in Seal v. Claridge (1881) (7 QBD 516 and 519)).
If a mortgage lender is involved, it may stipulate rules regarding the witnessing of documents. Most lenders insist upon independent witnesses who are not minors.
Physical Presence of Witness
The witness should be in physical proximity. This means that witnessing via video link is unlikely to be acceptable. If possible, a witness can view the signing of a deed from 2 metres away and then sign the document with a different pen and/or wearing disposable gloves.
It is possible that a witness such as a neighbour can view the signing of a deed through a window or if outside whilst sitting in their car. They can then witness the document as long as they have seen the actual signature being applied.
It is not advisable to ask a family member to be a witness especially when they may benefit from the deed being executed.
It is advisable that the witness be no younger than 18 or, at least, of sufficient maturity for their evidence to be relied upon in court should it be necessary to verify the signature on a deed.
There is no rule of law preventing deeds being signed electronically. However, a witness will still need to be physically present with the signatory which negates much of the use of this technology during the pandemic.
Companies normally execute deeds by a single director and a witness. However, it is possible for two directors or a director and the company secretary (where applicable) to sign. They do not need to be physically together when the signatures are applied. In such circumstances, distancing will be less of a problem. Also, electronic signatures are likely to be a quick and helpful resource.
Powers of Attorney
It may be advisable for individuals or businesses to appoint attorneys to sign documents on their behalf in the event of illness or self-isolation.
Pursuant to the Wills Act 1837, wills and codicils (changes to a will) must be signed in the presence of two witnesses who are physically present at the same time.
The government are currently considering whether to allow solicitors to witness wills via a video link as an emergency measure. This has already been permitted by the Law Society of Scotland.
Alternatively, legislation could be introduced which would permit electronic signatures to wills subject to adequate fraud prevention.
Currently, a witness would still be required to be physically present (whether 2 metres apart or looking through a window).
For the avoidance of doubt, it would be advisable for a witness to make a contemporaneous note (either in writing or by recording a video) confirming that they were confident that the person signing the will was doing so of their own free will and there was no evidence of any undue influence, mistake or any mental capacity issues which the witness noticed.
Wills executed during the pandemic can always be re-executed at a later date if the witnessing was too socially distant to be wholly reliable.
Codicils can be witnessed by a family member as they are not receiving any benefit. Thus, small changes to a main will may be permitted such as a change of executor in this manner.
Should you require any further information regarding the execution of documents, deeds or wills during the Covid-19 outbreak, please do not hesitate to contact our Mr. Bill Dhariwal, Managing Director, Lawcomm Solicitors, DDI: 01489 864 117, E: firstname.lastname@example.org
Please note: The above article was written on 06 April 2020 and does not constitute legal advice.