When individuals execute deeds their signature needs to be witnessed. One of the acceptable methods for a company to sign also requires a witness to a director's signature.
For years we have been told the witness should not be a relative but with people in self-isolation as a result of COVID-19, we need to look at this again.
Who can be a witness?
Interestingly there is no list as to who can or cannot legally be a witness. It's all about who would be the most reliable if called upon to give evidence that the deed was in fact signed by the individual in person. It is this need that has led to the following best practice that witnesses should be:
- over 18 years old;
- sufficient maturity for their evidence to be relied on;
- 'of sound mind'; and
- not have any commercial or financial interest in the deed.
It is however a legal requirement that the witness not be a party to the deed. (Note that there are additional more stringent requirements for some documents such as wills).
Why don’t we usually use family members?
We don’t usually use family members as they are more likely to have a direct or indirect interest in the impact of the deed and therefore are less likely to be a reliable witness if the signatory has reason to deny they had signed the deed. This may, of course, depend on the state of the signatory's marriage!
I'm isolated with just my family, can they witness the deed?
At the end of the day the decision is one to be made by the person who will benefit under the deed. But, before they do so, there are a couple of points to consider first:
Does the document have to be executed as a deed?
Although we often use deeds in practice, there are relatively few documents which have to be executed as a deed and which therefore require a witness. If the document does not have to be a deed, and there is consideration, consider redrafting it as a simple contract so a witness is no longer required.
Can the deed be executed differently?
Two directors or a director and company secretary can execute a deed for a company. It doesn't have to be a director before a witness.
Can the deed be witnessed by FaceTime/Skype/Teams?
The Law Commission has recently looked into this and the current position is that the witness has to be physically in the presence of the signatory in order to witness it. So, no, this can't be done (although the law seems likely to reform in this area in coming years).
Is there any additional protection that can take place?
A party relying on a deed may accept a family member as a witness (although will almost certainly insist on an adult) but may wish to add some additional controls so that if the signatory and witness both claim the deed wasn't signed there is some additional evidence to show they are not being truthful.
For example, an independent 'observer' (such as a solicitor) could watch the signatory and witness sign via FaceTime or Skype. That independent observer could provide additional evidence if the evidence of proof was ever challenged.
A note could also be kept with the deed of the practical reasons for the witness being related to the signatory (i.e. that it was because of the COVID-19 outbreak).
What will be required and acceptable will, as we say, depend on the requirements of the beneficiary under the deed and, likely, the guidance of their solicitors. The earlier these conversations are had the more easy it is to address the issues in these unusual times.