Cecily Zamora
In the UK, certain documents, such as deeds, require a witness to the signature for the contract to be validly executed. While there is no statutory requirement for a witness to be independent, it is considered best practice for a witness to be independent and to have no direct financial or personal interest in the contents of the deed. The witness should also be over 18 years of age and of sufficient maturity for their evidence to be relied on. While there is no prohibition against a minor acting as a witness, it is safer to use an adult witness to avoid any subsequent challenge to the witness's reliability or mental capacity based on their age.
| Characteristics | Values |
|---|---|
| Age | 18 or over |
| Relationship with the signatory | No close personal relationship with the person signing |
| Interest in the deed | No commercial, financial or personal interest in the deed |
| Witnessing method | Physical presence |
| Witness status | Not a party to the deed |
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What You'll Learn
Witnessing requirements for deeds
In the UK, witnessing requirements for deeds are an important aspect of ensuring the validity and enforceability of these legal documents. While the specific witnessing requirements may vary depending on the type of deed and the contracting party, certain general principles apply.
Firstly, it is essential that the deed is signed "in the presence of a witness." This requirement for physical presence extends even to cases where electronic signatures are used. The witness must be able to physically observe the signing of the deed, ensuring that it is genuinely executed by the person named. It is worth noting that the witness does not need to be standing or sitting alongside the maker of the deed, but they must be able to see the signing process.
In terms of who can serve as a witness, the ideal witness under English law is typically an independent adult who is not a party to the deed itself. This means they should have no close personal or financial relationship with the person signing the deed and should not stand to benefit from its terms. While there is no statutory bar against minors or individuals under 18 years of age acting as witnesses, it is generally safer to opt for an adult witness to avoid any subsequent challenges to their reliability or mental capacity based on their age. Additionally, while not prohibited, it is generally best to avoid having a signatory's spouse, civil partner, or cohabitee act as a witness.
In the case of companies or LLPs executing deeds, the witnessing requirements can be navigated through different signatory options. A single director or member's signature on behalf of the company or LLP does require the presence of a witness. However, by utilising the two-signatory option, where available, the requirement for a witness can be bypassed. This involves having two directors, or one director and a company secretary, sign for the company, or two members sign for the LLP.
It is worth noting that the use of electronic signatures and remote witnessing practices has gained prominence in the UK. However, deeds and certain other agreements continue to require strict adherence to traditional witnessing practices, underscoring the importance of understanding the specific witnessing requirements for deeds.
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Who can be a witness
In the UK, a witness is required for the valid execution of a deed. This is not the case for simple contracts, which do not need to be witnessed.
The ideal witness is an independent adult (aged 18 or over) who is not a party to the deed and has no commercial, financial, or personal interest in the deed. They must be physically present when the deed is signed, although they do not need to be standing or sitting alongside the maker of the deed.
There is no statutory requirement for a witness to be independent, and there is no prohibition against a minor acting as a witness. However, it is best practice for a witness to be independent, and it is recommended that minors are avoided to prevent any subsequent challenge to the witness's reliability or mental capacity based on their age.
If a witness is required, it is possible to ask a lawyer to witness your signature independently for a small fee.
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The role of a witness
A witness must be physically present when the deed is signed. While there is no prohibition against a minor acting as a witness, it is safer to use an adult witness to avoid any subsequent challenge to the witness's reliability or mental capacity based on their age. The ideal witness is an adult (aged 18 or over) who is not a party to the deed and has no commercial or financial interest in the deed.
In the case of companies or LLPs, a witness is required if the deed is executed by a single signatory. However, this can be avoided by switching to a two-signatory option.
It is important to note that the signatory's spouse, civil partner, or cohabitee can act as a witness as long as they are not a party to the deed, but this is generally best avoided.
Witnessing requirements are in place to limit future disputes over whether the document was actually signed.
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Electronic signatures
The use of electronic signatures is recognised under English law, and they can be witnessed. However, there is some uncertainty in the law, and it is important to note that not all documents can be signed using electronic signatures.
The Law Commission's 2019 Report concluded that the requirement for a deed to be signed "in the presence of a witness" necessitates the physical presence of that witness. This has been supported by a ruling from the First-Tier Tribunal (Property Chamber), which found that a deed may not be validly executed if the witness was not physically present when the signatory signed. Thus, if a deed must be witnessed, the witness must be physically present with the signatory and observe them signing the document.
There are three types of electronic signatures under English law: an "electronic signature," an advanced electronic signature (AdES), and a qualified electronic signature (QES). The use of AdES and QES is rare in English law transactions, with QES generally being reserved for cross-border transactions or those requiring more robust identity verification.
For many transactions, simple electronic signature platforms can be a cost-effective, quick, and environmentally friendly way to enter into deeds and contracts. However, there are certain documents for which these platforms are not appropriate. For example, wills under the Wills Act 1837 require a handwritten signature, and negotiable instruments must exist in "physical form."
In the case of companies, a deed can be created without the need for a witness if two authorised signatories, such as two directors or members, sign the document. This bypasses the concerns around witnessing electronic signatures.
HM Land Registry has provided guidance on how to execute a deed that has been signed with electronic signatures. One option is to print out the executed deed and make amendments to this print-out, adding an endorsement at the start that identifies it as a print-out of the electronic deed. If an amendment is "material," meaning it is potentially prejudicial to a party's legal rights or obligations, it must be countersigned by the parties.
It is worth noting that while electronic signatures can be witnessed, the witness may not be able to see the digital information. They can, however, observe the signatory adding their signature to the document on the screen.
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Powers of attorney
A power of attorney (POA) or letter of attorney is a written authorization that allows someone to represent or act on another's behalf in private affairs (financial, health, and welfare), business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor, and the one authorized to act is the agent, attorney, or attorney-in-fact. A power of attorney must be in writing and signed by the grantor, and some jurisdictions require it to be witnessed or notarized. In English law, applying to England and Wales, anyone with capacity can grant a power of attorney, and there is no requirement to be a British citizen or live in the UK.
There are different types of powers of attorney, including special, general, temporary, and durable. A special power of attorney is limited to a specific act or type of act, while a general power of attorney allows the agent to make all personal and business decisions. A temporary power of attorney has a limited time frame, and a durable power of attorney can be revoked or changed as long as the principal is mentally competent to act. If the grantor specifies that the power of attorney should continue if they become incapacitated, it is called an "enduring power of attorney", "lasting power of attorney" (LPA), or "continuing" power of attorney.
In 2007, a new type of power of attorney was introduced under the Mental Capacity Act 2005, which must be in a prescribed form, signed, witnessed in a prescribed order, and registered with the Office of the Public Guardian (OPG). This replaced the former enduring power of attorney, although those made before the law changed remain valid. An LPA gives the attorney the power to make decisions about money, property, and daily routine on behalf of the donor, and can be revoked if no longer needed.
It is important to note that if a power of attorney is not created, the government will not automatically step in if one can't manage their own affairs. In such cases, a family member or close friend may need to apply to become a "guardian" of property or make healthcare decisions.
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Frequently asked questions
A witness to a deed must be an adult (18 years and above) who doesn't benefit under the terms of the deed. The witness should be independent, with no direct financial or personal interest in the contents of the deed.
Yes, under the laws of England and Wales, you must have your signature witnessed for some documents, such as a deed, for the contract to be validly executed.
While there is no statutory requirement for a witness to be independent, it is considered best practice. A witness may be called upon to give unbiased evidence about the signing, so they should not be a spouse, cohabitee, or close family member of the individual signing the deed.
Yes, the witness must be able to physically see the signing of the deed. UK law does not recognise virtual or remote witnessing of deed signatures as valid.
