The Law Commission of England and Wales has recently confirmed in their report Electronic execution of documents published on 4 September 2019 that electronic signatures can be used to execute documents (including deeds) instead of handwritten or wet ink signatures where there is a statutory requirement that a document must be “signed” (and where there is no such statutory requirement) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to the execution of that document are satisfied. The statement is based on existing EU and domestic legislation, and case law.
Acceptable forms of electronic signatures upheld by the courts and noted in the Law Commission’s report have included: (1) a name typed at the bottom of an email; (2) clicking an “I accept” tick box on a website; and (3) the header of a SWIFT message. Document software is now available which allows documents to be signed by producing and storing an electronic version of a person’s signature and replicating it by clicking in a box.
This is fine where simple contracts or terms and conditions are concerned but what about deeds where the signature of each party to the document also needs to be witnessed by an independent person?
The second part of the Law Commission’s project focused on the electronic execution of deeds, including the requirements of witnessing and attestation and delivery considers the position relating to commercial and consumer documents, and deeds including powers of attorney and trust deeds though does not include Wills or registered dispositions under the Land Registration Act 2002.
The Law Commission’s report concludes that the current law, “probably does not allow for “remote” witnessing where the witness is not physically present when a signatory signs a deed.” The Law Commission’s view is that current law that a deed must be signed “in the physical presence of a witness” requires the physical presence of that witness. This is the case even where both the person executing the deed and the witness are executing/attesting the document using an electronic signature.
The report recommends that: an industry working group is put together to consider practical solutions to the video witnessing of electronic signatures on deeds and attestations problem; and, a future review of the law of deeds should take place.
The Law Commission’s full report can be found here:-
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