Witnessing Deeds. Is it possible to do so electronically without being present?

Man signing a document

Under section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 a signature to a deed needs to be witnessed and attested. 

What this means in our electronic age is increasingly being tested by the courts. The First Tier Tribunal recently considered, in the case of Yuen v Wong, whether a remote witnessing of a signature via Skype was sufficient to satisfy this requirement. The signing of a TR1 took place in Hong Kong, but the signatory’s solicitor in London watched the signing take place via Skype. The TR1 was then posted to London where the witness added their signature to the document some days later.

The Law Commission’s view is that section 1(3) required the physical presence of a witness in order for a deed to be validly executed. The Tribunal came to the same conclusion and agreed that it was an arguable case for invalidity given that the witness was only present via Skype. It is important to note that the Tribunal did not decide explicitly on the legal point and thus it does not constitute binding authority. However, it provides useful judicial direction on an important point on which there was previously no authority at all.

Thus, as currently drafted, section 1(3) does not appear to allow for standard execution processes to be streamlined by the use of modern audio-visual technology.

With the current quarantine implications and the advances in modern technology since the 1989 Act our view is that a review of these provisions is long overdue.

For further information about this or any other commercial or property matter why not contact one of Alexander JLO’s expert lawyers and see what we can do for you?

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