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A witness to history: attesting documents in lockdown

There is no doubt that we are living through a period that is of historic significance. Similarly, as the legal world, particularly the transactional one, looks to 'new' technology to provide answers to the logistical challenges we face, we may also find answers by looking back to the distant past.

  Social distancing, shielding and self-isolating have already proved to be a spur to the accelerated take up of electronic signature platforms and virtual closings. Of course the Law Commission Report of September 2019, the Ministerial Statement of February 2020 and (dare I say it, my vaguely portentous blog post) could not have predicted a global pandemic, but present circumstances have driven lawyers to advance headlong into the uncharted fringes: yet here be monsters.

We are risk averse by design, the absence of clear authority for certain forms of e-signature or electronic execution had kept us in familiar territory; and without the physical restrictions that now pervade our personal and professional lives, retaining the idiosyncratic formalities for deeds and wet-ink execution didn't seem much of a problem.

But while the Law Commission Report and the Ministerial Statement provide some comfort to the legal recognition and enforcement of electronic signatures (see also our recently launched e-signature opinion portal) two troublesome blind spots remain – witnessing and document registration. This blog post will look at the former (I may broach the latter in a subsequent post).

Witnessing is problematic because of the apparent need for the physical presence of the witness - by which we mean actual proximity to be able to observe (attest) the signature. Although the courts have never expressly stated that physical presence is required, the Law Commission was quite clear in its Report that this meant witnessing remotely, by video conference, was not possible.

The presence of a witness is mostly a statutory construct borne out of the 19th century law relating to wills, and extended to the worlds of corporations and property. As such, it may be helpful to return to that context in our search for solutions. But how is looking back to case law around the time of Jules Verne and H.G. Wells going to help when technology like FaceTime, Skype or Zoom would represent the fantastical limits of even their imaginations? Read on.
 

What does presence mean?

The witness must see the signature. You can't just be in the same room. It's not witnessing if you just comply with an instruction to sign your name, you must actually observe and verify the signature (Sherrington v Sherrington [2004] All ER (D) 203 (Jul)).

Presence has also been extended to include the mental (conscious and aware) and not just the physical (see Right v Price (1779) 1 Doug. K.B. 241 (witnesses in an adjoining room, while the testator was 'delirious'); Re Killick’s Goods (1864) 3 Sw. & Tr. 578 (witnesses in another room but they didn't see the testator or hear her voice).

In Brown v Skirrow [1902] P. 3 a testatrix signed her will in a shop while at least one of the subsequent witnesses was engaged with a customer, leading to the judge to hold that presence meant actual visual presence, stating: "You cannot be a witness to an act that you are unconscious of; otherwise the thing might be done in a ball-room 100 feet long and with a number of people in the intervening space. In my view, at the end of the transaction, the witness should be able to say with truth, 'I know that this testator … has signed this document.'"

Looking back further in time, we come across Casson v. Dade (1781) 1 Bro.C.C. 99, a case where a will was executed from inside a horse-drawn carriage and deemed properly witnessed, albeit momentarily through the carriage window after the horses fortuitously reared up. Nevertheless this apparent anachronism was upheld, as recently as 2011 when, in Re Clarke, a witness sitting in an adjacent room was held to have had a clear line of sight through glass doors. The judge reasoning that Casson v Dade stood the test of time because "it is basic common sense".

So, if a clear line of sight through glass affords visual presence, does this extend sufficiently to physical presence such that remote witnessing may be possible? Or perhaps, if line of sight is ok, how then did the Law Commission come to its conclusion that the law wasn't quite ready for video witnessing?

In its Report, the Law Commission commented that while the Law of Property (Miscellaneous Provisions) Act 1989 and the Companies Act 2006 require the “presence of a witness”, they do not specify “physical” presence and therefore it isn't sufficiently clear that the statutory requirements would be satisfied by remote forms of witnessing, including through electronic signing platforms.

They also considered whether principles of statutory interpretation would get us there, making allowances for technological changes. But statutory interpretation may be limited where the legislation is restrictive, rather than permissive and, in the case of the formalities for deeds, those provisions limit the validity of deeds to documents that meet certain requirements.

A further hurdle is that of public policy. That goes to the mischief that the formalities are designed to prevent. The requirements often seek to protect individuals who confer authority on others to make decisions about their personal welfare, and/or property and affairs. Since much of the case law sits in this context (s.9 of the Wills Act 1837 to be precise), it's worth remembering that wills are particularly susceptible given those arrangements are only ever viewed after the person making it has died, and there is implicit reliance on evidence as to the circumstances in which the will was made. Why then should commercial contracts and financial instruments be subject to the same evidential safeguards when the parties are mostly around to tell the tale?

The Report expressly excluded wills (alongside dispositions of land) nevertheless the Law Commission's conclusion as to the invalidity of remote witnessing derives from "the combination of the restrictive wording of the statutory provisions and the serious policy questions underlying any extension to accommodate technological developments".

And yet, the restrictive statutory context for deeds (i.e. those that aren’t wills), is different. Public policy arguments may be stronger here too when recognising technological advances, which we already see are ably facilitating remote working and commerce, despite the current crisis.

A word of caution then perhaps on technology. The admirable enthusiasm and confidence of technology providers in their solutions cannot mask their fallibility. There is no doubt there are still limitations: video and audio feeds periodically cut out or lose resolution, field of vision is limited, IP addresses may be masked or cloned in different physical locations (or conversely appear different even when the witness is stood next to a signatory but on a different device) depending on the networks used.
 

What are the possible solutions?

Regardless of the Report's conclusions, it remains open for courts to decide that remote or virtual witnessing would satisfy the relevant statutory requirements but, until a test case is run or we have legislative clarity, we must operate on a basis of needing a witness to be physically present. So how can we achieve that in lockdown or in the context of social distancing or shielding?

Practically the historic cases provide comfort to some that witnessing may nevertheless take place with a degree of separation – such as on a car bonnet (see also BBC News, Coronavirus: Wills 'being signed on car bonnets' amid lockdown) or through glass, where precautionary steps may be added, for example where a third party observes, perhaps by recorded video call, documents being clearly held up to the glass, read, signed and passed safely to the relevant people). Similarly, documents could be signed and witnessed with parties taking turns to approach a document in open space, keeping two metres apart, with unimpeded views of the act of signing and attesting. (Peering over the garden fence or rubber-necking between balconies might present more of a challenge.)

Other coronavirus safety measures such as not sharing pens, using gloves/facemasks (provided parties are still identifiable) and sealing the document for a period afterwards would also be recommended.

But what if you are simply unable to find anyone who can physically attend to act as a witness? Options here are limited to:
  • exploring ways in which to dispense with the witness requirement, perhaps by considering whether the document does in fact need to be executed as a deed or having two authorised signatories sign instead; or
  • proceeding on the basis that equity will come to your assistance (given the case law and perhaps a compelling public policy argument in present circumstances) and permit a form of video witnessing with remote but visual corroborating evidence in the form of additional third party independent observation, clear authority, correspondence and attendance notes that together might provide a defence to any subsequent challenge. This option would nevertheless run contrary to present legal advice.

Other witness formalities

While the physical presence of a witness is perhaps the most pressing issue, we mustn't forget other potential hurdles in the act of attesting/witnessing (and assuming the signatory is otherwise capable and has requisite authority).

As people all over the world are confined to their homes, often with immediate family, the traditional best practice of requiring a truly independent witness may need to be relaxed. English law requires only that a witness is not a party to that deed or in some way in receipt of any benefit or advantage under it. There is no technical requirement to be entirely independent. Therefore, spouses and other family members may, at a push, usefully attest.

Other circumstances that should be avoided (although not necessarily fatal to attestation) are where a witness is visually or mentally impaired or a minor (under the age of 18).  Similarly being intoxicated or otherwise under the influence is unlikely to be viewed favourably in court.
 
 

Is there a legislative fix coming?

Our contemporaries in Australia (well, those in New South Wales) have already blazed that trail. Under a temporary regulation made on 22 April 2020 certain documents, requiring a witness may now be witnessed by video link. The "Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020" applies to, among others, the execution of powers of attorney, deeds or agreements, affidavits and statutory declarations. It also applies to arrangements in relation to witnessing, such as certifications and verification of identity and prescribes the manner in which witnessing the signature can be confirmed. The measures are in place for a maximum period of 6 months. Other states and territories are thought likely to follow but there has been no central determination in relation to Commonwealth law.

Closer to home the Law Society and the Ministry of Justice are considering whether to relax requirements in relation to wills (possibly following niche provisions of the Wills Act 1837, allowing armed forces personnel to make relatively informal wills without the need for a witness to be physically present). In the Channel Islands, Jersey has temporarily relaxed its rules for wills.

However, again there is sadly perhaps a more pressing need to relax the rules insofar as they relate to making wills, but there has been no apparent movement of the requirements under English law as they apply to a broader commercial context. For the time being therefore lawyers and clients will continue to probe the legal perimeters in search of solutions. But in a time of unprecedented upheaval and uncertainty there is perhaps something comforting in looking to the past.

 

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