Author16th May 2024 | Masood Haider | Residential Property, Legal Documents, Witnessing
In the fast-paced world of legal transactions, signing documents correctly might seem straightforward, but the devil is in the detail. Masood Haider, Senior Associate in the Residential Property team at Sherrards Solicitors, sheds light on the often-underestimated role of witnesses of legal documents and the potential impact of signing and making the contract legally binding.
The Weight of Witnessing:
Becoming a witness to a legal document carries significant responsibilities that extend beyond mere observation. A witness must be a neutral third party with no financial interest, must know the person whose signature they are witnessing, and must be satisfied as to their identity. The witness does not however have to be familiar with the terms of the document.
The role of a witness is to guard against forgery or intimidation. They should be someone who can provide unbiased evidence about the circumstances surrounding the signing of the document, should they be called upon.
Contrary to popular belief, a spouse or co-habitee can in fact act as a witness, but it is best avoided as it could be argued that they are not neutral. It may sound obvious but it is important to keep your signature consistent. Witnesses must be at least 18 years old, ensuring maturity and legal capacity.
An individual or a company can authorise a power of attorney to sign on their behalf, but the delegated power of attorney will still require a witness for their signature. In this instance, the witness is verifying the identity of the attorney.
Navigating Individual Signatures:
Witnessing an individual’s signature demands attention to detail. After witnessing the signing process, the witness must affix their signature to the document, alongside printing their name, address, and occupation. This information must be legible for traceability.
The usual form is as follows:
Signed as a deed by (full name of individual) in the presence of
Signature:_______________________
Signature of witness:________________________
Name of witness (in BLOCK CAPITALS):___________________
Address of witness: _________________________
Occupation of witness:________________________
Although a witness can verify two signatures on a document, each signature should be separately witnessed. In certain instances, such as Mortgage Deeds or Legal Charges, lenders may require witnessing by a Solicitor or Notary Public.
Company Signatures Unravelled:
Verifying signatures on behalf of a company presents its own set of considerations. Essentially it is usual for two directors to sign without the need for a witness.
However, since the enactment of the Companies Act 2006, a single director can sign in the presence of a witness, streamlining the process.
Understanding Signing Requirements:
Certain documents, like plans, do not require a witness but necessitate initials by each party. Similarly, contracts do not typically require a witness as they are not deeds. Documents such as Wills require two witnesses, while others, like Powers of Attorney or Assured Shorthold Tenancies (ASTs), necessitate each page’s initialling by each party and a signature at the end to ensure comprehension and agreement.
Electronic signatures:
The advent of electronic and digital signatures introduces new possibilities and challenges. While electronic signatures gain traction, especially in residential tenancy agreements, their validity in legal deeds remains uncertain. Land registry have published some guidance.
In the intricate realm of legal transactions, the role of witnesses is paramount in ensuring the authenticity and validity of documents. As the legal landscape evolves, practitioners must remain vigilant, adapting to emerging trends while upholding the integrity of the witnessing process.
If you would like advice on best practice, or on anything related to conveyancing and residential property. Speak to Masood Haider on the details below:
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