Take, for example, witnessing a signature to a deed.
A deed is a document that, among other requirements, must be executed with an enhanced degree of formality – in the presence of a witness – in order for it to be enforceable.
Deeds are commonly used in a variety of personal and commercial transactions and are required for wills and most property matters.
To validly execute a deed, an individual must sign a deed in the presence of a witness who attests the signature. Wills must be executed in the presence of two witnesses.
The current legal position is that a witness must be physically present when the deed is signed.
Attendance via Skype, Zoom or any other video calling or conferencing technology does not satisfy the presence requirement, according to the Law Commission’s 2019 report Electronic Execution of Documents.
One can imagine that in times like these when so many people are self-isolating or practising extreme social distancing to minimise the spread of the coronavirus, an individual needing to execute a deed may be hard-pressed to find a witness who can be present to witness his/her signature.
One could take inspiration from people who have been greeting elderly relatives through closed windows, and watch someone sign a deed through the window, step back while they put the document on the outside window sill, and then sign to attest it (using a different pen, of course).
Or perhaps someone living in a flat could sign a deed on their own balcony, witnessed by someone on a neighbouring balcony – although flinging the deed across the gap might be a challenge too far.
The difficulty of finding an appropriate witness is compounded by the need for the witness to be independent and able to provide, if necessary, unbiased evidence of the timing and circumstances of the deed being signed.
For this reason, though it is not actually unlawful, it is not advisable to ask family members to act as witnesses but better to rely on neighbours or disinterested third parties.
At present, this is likely to be problematic given the social distancing measures in place in many parts of the world.
However, if virtual witnessing of signatures were permitted by English law, an individual could, for example, video call their lawyer, sign the document while on camera and then send the ‘wet ink’ document by post (or a scanned copy by email, if permitted) to their lawyer for attestation.
The physical presence requirement was recently considered in the Law Commission’s report, which was published on September 4 2019.
The report confirmed that, perhaps counterintuitively, while a deed or other document can be signed electronically and the witness may attest the signature electronically, the witness must still be physically present at the time of signature.
Even where software such as DocuSign allows for deeds to be signed and witnessed electronically, the witness must still be physically in the same room as the signatory.
The Law Commission recommended that the government set up a working group to consider the matter.
It remains to be seen how long it will take for the law to catch up with the enormous shift caused by the pandemic and our growing reliance on technology.
Stephen Morrall is a partner and Cordelia Smith is a trainee solicitor at Hunters Law
