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During the current COVID-19 climate with the government advising on social distancing, many people will find executing documents difficult.  So, what advice should law practitioners be giving their clients to assist when executing documents?

Can documents be electronically signed and remotely witnessed?

The Law Commission report 2019 “Electronic Execution of Documents” confirmed that electronic signatures are valid and can be used to execute documents such as contracts, a stance that was agreed in the Lord Chancellor and Secretary of State for Justice’s ministerial statement of 3 March 2020.    

However, the Law Commission’s report did determine that the position relating to the execution of deeds (as opposed to other legal documents and agreements) would be entirely different. In instances of deeds, the Law Commission concluded that for a deed to be validly executed it must be signed in the presence of a witness with the term ‘presence’ meaning in the ‘physical presence’.

In a recent case of Man Chin Yuen v Landy Chet Kin Wong1 the judge agreed with the Law Commission’s findings and ruled that the wording in Section 1(3) of the Law Property (Miscellaneous Provisions) Act 1989 “An instrument is validly executed as a deed by an individual if, and the only if…it is signed by him in the presence of a witness who attests the signature” meant that there must be physical presence by a person witnessing the signature of a person executing the deed.  

The judge, therefore, concluded that remote witnessing such as using video link would not constitute a valid execution of a deed.

Other considerations when executing a deed

• A witness does not need to sign the deed in the presence of the person executing the deed (see the recent case of Wood v Commercial First Business Ltd) and so it is possible that as long as the witness was physically present when the deed was signed they can sign the deed at a later date.   
• A person who is also a party to the deed cannot act as a witness for the person executing the deed (Seal v Claridge3).
• Whilst it is always good practice for the witness to be independent from the person executing the deed, there is no statutory requirement either under the Law of Property (Miscellaneous Provisions) Act 1989 or Companies Act 2006 for the witness to be independent or disinterested. Therefore, there is no prohibition on the witness being a spouse, cohabitee or civil partner. In the current climate, this is an option that is available to clients.

What this all means particularly during the current COVID-19 climate is that law practitioners must take caution when advising their clients on the correct way to execute deeds especially those advising lenders and buyers as any incorrectly executed deeds such as Legal Charges could put a Lender’s securities at risk and may not be acceptable to the Land Registry.   

1 First Tier Tribunal (Property Chamber) 2020 (ref 2016/1089)

2 [2019] EWHC 2205 (Ch)

3 [1881] 7 QBD 516 at 519