Execution of documents during Covid-19
Posted on 1st July 2020
Legal documents generally require signatures to have binding effect, such as contracts/agreements, court documents, and deeds.
There are also rules on how and who can execute certain types of legal documents.
This has all come under the spot light recently with the difficulties posed by COVID-19, the lockdown and need for social distancing.
The requirement for an actual ‘wet’ signature on paper has becoming increasingly diminished with the rise of technology, even before COVID.
On 4 September 2019 the Law Commission provided guidance that:
- An electronic signature is capable in law of being used to execute a document (including a deed) provided that
- (i) the person signing the document intends to authenticate the document and
- (ii) any formalities relating to execution of that document are satisfied.
- An electronic signature is admissible in evidence in legal proceedings.
- The common law adopts a pragmatic approach and does not prescribe any particular form or type of signature
In the case of Necocleous v Rees (2019) an auto generated sign off on an e-mail was held to be a ‘signature’ evidencing intention.
Further details are set out in my blog.
The Law Society has published recent guidance on the use of virtual execution and e-signature during COVID1.
The Law Commission has however re-instated that a Deed still requires execution in the physical presence of witnesses.
This position was relied on in the recent case of Yuen v Wong (2020) where the First Tier Tribunal decided that a transfer deed witnesses by Skye was not valid due to the lack of physical presence of the witness.
It is noted that this case was decided in January 2020, before COVID, and in a non-binding forum.
This is a particular problem at the moment for people who want to make a Will, which for some is more of a pressing need in light of COVID-19 with the stark reminder of their mortality.
Under s9 of the Wills Act 1837, a Will must be:
- In writing
- Signed by the testator
- In the presence of two or more witnesses present at the time
In the case of Brown v Skirrow (1902), the requirement of physical presence is that the witness must have a clear line of sight (‘visual’ presence).
This has ruled out the possibility of witnessing over any form of video call.
The case of Re Clarke (2011) COP was where a signature for a Lasting Power of Attorney was held valid where the witness had been in an adjacent room and had witnessed the signing through a glass door.
Solicitors “acting in connection with the execution of wills” have now been included in the list of key workers, allowing freedom of movement during lockdown.
Given the relaxation more recently of the lock down rules (the ability to meet with up to 6 people outside your household outside), it is not as difficult to secure two witnesses who are unrelated and not a beneficiary of your Will. Provided that the 2 metre social distance is maintained.
It is even more important during these difficult times to keep a proper note of the Will making process, and perhaps to even obtain statements from the witnesses confirming the circumstances of the execution and witnessing to avoid future challenges to the validity of the Will.
Clearly this area of the law is crying out for legislative intervention and the Law Society and the Ministry of Justice are in talks about relaxing the formal requirements but no timescale is on the horizon yet2.
Land Registry Documents
On 4 May 2020 the HM Land Registry updated their Practice Guide 83 on the execution of deeds to introduce temporary changes in light of COVID.
This allows them to accept deeds for registration which have been signed using the ‘Mercury’ method.
“This means that, for land registration purposes, a signature page will need to be signed in pen and witnessed in person (not by a video call). The signature will then need to be captured, with a scanner or a camera, to produce a PDF, JPEG or other suitable copy of the signed signature page. Each party sends a single email to their conveyancer to which is attached the final agreed copy of the document and the copy of the signed signature page.”
They have also extended the list of people who can verify identification, which can be done by way of a video call.
However, they have made clear that any form of witnessing other than contemporaneous, physical witnessing, will not be sufficient for the purposes of section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989.
The impact of COVID will only get you so far and it is still very important to comply with the strict rules on execution, especially where witnesses are required.
This should become less onerous as the lockdown continues to be eased, and everyone adjusts to the norm and finds innovative ways to comply with the law.