Coronavirus – deeds, affidavits and statutory declarations

In the current climate – can the above be witnessed electronically?

With the current Coronavirus lockdown, social distancing and remote working, organisations are having rapidly to rethink how documents can be signed and - where relevant - witnessed.

Businesses and individuals have already been using electronic signatures on contracts and other documents for some time and the Law Commission confirmed in its September 2019 report 'Electronic execution of documents' that it was permissible under English law to sign legal documents electronically. This was also endorsed very recently in a UK Government Ministerial Statement on 3 March 2020. We refer to our recent article on the subject: 'An introduction to electronic signing of documents'.

Signature and witnessing

But what about situations where signatures need to be witnessed, such as deeds, affidavits and statutory declarations? Could these take place over Skype or other video technology given the current situation? The Courts have been quick to use video hearings in place of physical attendance to avoid contact, and so there should be no reason in principle why this could not also work for witnessing formal documents.

To confirm, deeds can be signed electronically, but must be witnessed by a third party. There is no legal requirement for the witness to be an adult or independent and, although it is best practice to avoid having a relative or interested party witnessing the execution of the deed, a more relaxed approach may need to be taken in the current situation. Affidavits and statutory declarations must be sworn on oath or affirmed in front of a solicitor, notary or commissioner for oaths. The procedure of executing a statutory declaration is dictated by custom, which is based on administering an oath or affirmation.

The Law Commission's present view

The Law Commission's present view is that where there is a requirement for a signature to be witnessed, the witness needs to be physically present and that the law does not currently allow for remote witnessing such as by video link. This appears to be based on established custom however, rather than legislation or case law, and clearly raises practical problems in the current climate.

The Law Society suggests: "In the absence of any prescribed requirements or case law, it remains the custom for the declarant to be physically present before the solicitor or commissioner of oaths at the time of taking the declaration."

What about virtual witnessing?

Given that the statutory declaration legislation dates back to 1835, virtual witnessing via video would not have been on anyone's radar and this explains why there is no express provision enabling or prohibiting it: There simply would have been no alternative to the witness being physically present.

We understand that the Government has been considering the question of video witnessing electronic signatures, but there is no timetable currently set for addressing the question. In the wake of the Coronavirus outbreak, a major overhaul of all legislation regarding the requirements around witnessing documents clearly needs to be firmly on the agenda and should lead to greater clarity in this area.

In the meantime there is a real risk of virtual witnessing being declared void until there is clear guidance in place to the contrary. Our current advice is to ensure that where a document must be witnessed, the witness should be physically present. Given the practical issues with people self-isolating or working from home, we would recommend a discussion about how imperative it is that the document be signed now and the implication, if any, of delay during these unprecedented times.

Even if virtual witnessing via video link becomes acceptable, legal professionals and clients should remain alive to the risks that this may pose. For example, video conferencing facilities can make it difficult to check the accuracy of the documents and exhibits, can obscure visibility of a signature and make it hard to identify documents.

If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact Fiona Pearson, in Michelmores' Commercial & Regulatory Disputes team.

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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.