Lucy Beachell, solicitor in Harrison Drury’s commercial property team, reinforces the importance of following the correct guidance for witnessing documents and how to still meet legal requirements during the coronavirus pandemic.
Last updated April 2, 2020
The coronavirus COVID-19 pandemic and subsequent UK government rules on social distancing and self- isolation has created challenges for businesses. This is certainly the case for solicitors and clients when it comes to executing and witnessing legal documents including deeds, mortgages and leases.
The purpose of witnessing legal documents
In order for legal documents to be validly executed, and subsequently become legally binding, they must be signed in the presence of an independent adult witness. Where the legal document is being executed on behalf of a company, one method is for the document to be signed by the director in the presence of an independent adult witness.
If the documents are not witnessed, they will not be legally enforceable and will therefore be unacceptable to a bank or to the solicitor acting on behalf of other parties involved in the transaction.
Who can be a witness?
Many solicitors often refer to their client having to sign a legal document in the presence of an ‘independent’ adult witness. However, strictly speaking, this is inaccurate and not a legal requirement to ensure a document is legally binding and enforceable.
Therefore, a spouse, civil partner or co-habitee can be a witness to your signature provided they are not also a party to the document in question.
A scenario under the current self-isolation and social distancing rules
You have been sent a new lease to sign for a commercial property that you own. You are currently self-isolating with your wife who is a high-risk individual and you must therefore limit contact with other people. Your wife is not a party to the lease as you own the property in your sole name.
Can you validly execute the lease and return it to your solicitor? Yes, in this scenario you can. As your wife is not a party to the lease, you will be able to ask her to witness your signature and the lease will be validly executed.
However, remember that if your wife was a party to the lease, she would not be able to witness it and you would have to ask someone else to witness it for you. In this situation, the best course of action would be to ask a neighbour or other family member to witness your signature, whilst maintaining the government rules on social distancing and self-isolation. This could perhaps involve leaving the documents to be signed in the garden or backyard or through an open window, so long as the witness has witnessed you signing the documents.
However, do remember to take precautions to decontaminate the paperwork. Steps such as wearing rubber gloves when handling the document are advisable.
Can you witness signatures via Skype or Facetime?
You cannot witness the signing of documents using online communication or by video. The guidance produced by the law commission refers to a witness being ‘in the room’ at the time the document is signed.
Can children witness my signature?
Children under the age of 18 can witness your signature as well as adult children, however, it is strongly advised against. Even in the current crisis, banks and solicitors are unlikely to accept this option. Furthermore, it is important to remember that should the circumstances under which a legal document was signed come under scrutiny, a child, as a witness, may be required to attend court to give evidence.
This is a traumatic experience for an adult, never mind a minor, so a child should only witness a signature where there is absolutely no choice and they are of sufficient maturity to understand the reasons for doing so.
If you require further assistance regarding the witnessing of legal documents or to seek further advice from Harrison Drury’s property litigation and commercial property teams, please call 01772 258321.