The Impact of COVID-19 on Witnessing Documents

When it comes to the witnessing of deeds, there are rules in place to protect the interests of the parties involved. The purpose of signing a document as a deed is to remove any ambiguity or potential issues that might arise in respect of the validity of the deed.

One of the most prominent rules of best practice is that the witness to a signature should be an independent party and should not be a family member of the individual signing. These rules are widely acknowledged to be correct in the eyes of the legal system, but they are given no statutory support. This means that it is still a possibility for a family member to be a witness to a signature.  

Rules for witnessing documents

  • The witness will be an independent party
  • The witness may not be a family member or another party to the contract
  • The witness will be physically present
  • The witness signs to attest the signature of the signatory

How has COVID-19 affected these rules?

Given the current ‘stay at home’ guidance, logistical challenges have arisen for those who are currently in the process of entering into contracts.

In a world where working from home and video conferencing has very quickly become the norm, it seems a reasonable suggestion that witnessing via video link might be a good option. However, in a 2019 report, the Law Commission were not convinced that witnessing via video link was a valid option for deeds and so, this cannot be done without scope for potential objection into the validity of the deed in the future.

Prior to COVID-19, it was acknowledged by the Lord Chancellor that there were concerns surrounding document execution. The Law Society have more recently issued updated guidance that the law has remained unchanged since the outbreak of the pandemic.

Law Society update

It has been recognised that the need for electronic signatures, virtual execution and witnessing of documents has increased dramatically over recent weeks and that further clarification is needed to provide certainty for solicitors and their clients.

The Law Society guidance aims to allow transactions to continue in an evolving commercial environment, in a practical and pragmatic manner, whilst providing legal certainty.

Witness criteria

General guidance states that the practical means of witnessing different forms of electronic signature will need to be settled on a case-by-case basis, with consideration given to the evidential weight of the form agreed. However, the leading opinion is that it is best practice for the witness to be physically present when the signatory signs, rather than witnessing through a video conferencing facility, in order to minimise any evidentiary risk as to whether the person genuinely witnessed the signing.

Even in light of COVID-19, this has been accepted by The Law Society to remain as best practice. However, given health risks, it has been suggested that it may be necessary to modify practice to suit the current circumstances.

New ‘Best Practice’

The Law Society have stated that this can be achieved by obtaining a number of verification sources. It has also been suggested that there is no reason why the document cannot be signed using a combination of different methods, so long as each party uses a valid signature method.

The witnessing of documents during this period of uncertainty will be dealt with on a case-by-case basis. This decision process will have regard to the type of document, the brevity of the document and the nature of the transaction. With there being no statutory restrictions on spouses being the witness to a deed, this is a viable option in the current circumstances and is more likely to be upheld as valid than it would be in a normal working situation.

If you would like more information or advice regarding the witnessing of documents, please contact the corporate and commercial department.