When you see a person signing a deed, it is said that you are “witnessing” their signature, which means: Depending on the document, the court may require or require one or more persons to witness it. Legal documents that often require witnesses include: wills, mortgages, contracts, divorce decrees, and other property settlement documents. Read our latest white paper and learn more about cookies in the UK or contact our experts if you have any questions. Most contracts that require a signature to be governed by English law do not require that signature be evidenced. Nevertheless, parties may sometimes want to add this extra step to emphasize the importance of the document and its correct signature, and in certain circumstances, a witness is required by law. “. The requirement under the current law that a document be signed “in the presence of a witness” requires the physical presence of that witness. This is also the case if the person executing the document and the witness execute/testify the document with an electronic signature. Yes, you must be physically with the signatory when they sign to give an appropriate testimony. The role of the witness is above all to protect himself against falsification or coercion. In the event of a dispute, a witness may be required to provide impartial evidence of the circumstances of the signature. In this particular case, there are special formalities that apply to the execution of documents, including a legal obligation to testify and that the witness must be in the physical presence of the signatory when the signatory signs the document. When it comes to selecting a witness, it must be a person who is not otherwise a party to the document.
For most documents, the witness does not need to be independent. This means that a signatory can use any appropriate person as a witness. The signature can be observed both in person and remotely (e.g. by videoconference). In both cases: being a witness means observing the execution of a document. The certificate includes the additional step of recording on the document itself that the witness witnessed the execution. As a rule, this is achieved by the witness signing a certification clause confirming that the document has been properly executed in the presence of a witness. If you present the document to a foreign authority, the document must first be legalized. The procedure for legalizing a document for international use is to add the apostille to the document. The apostille confirms that the witness is a judicial officer recognized in the country where the document was issued. If the document is to be presented in a country outside the Apostille Convention, this may also require an embassy certificate. If the parties decide to include a witness for a signatory, but this is not required by law, these formalities do not apply and telefiling on the application of the signature (including by video) is a possible option.
We regularly hear from clients who have affidavits, powers of attorney or powers of attorney to present to a foreign authority. Although these documents must first be attested by a British lawyer or notary, there are some additional steps required before the documents are legally recognised. If it is not possible to be in the physical presence of an independent witness, a family member or person living together is sufficient, unless the witness is a party to the documents or other transaction. When executing business documents, the two most common situations where a certificate is required are the performance of an act by an individual and the performance of a simple contract or deed by a company by the signature of a director of the company. For more information, see the Practice Note: Execution of Documents – Simple Deeds and Contracts. This practice note summarizes the execution formalities for witnesses, including who can act as a witness for another person`s signature on a document related to a commercial transaction such as a simple deed or contract, testify to the electronic signature and position as video witnesses. For information on witness wills, see Practice Note: Validity of Wills – Signature. A person named in a legal document cannot appear as a witness to that document. So if you named your best friend in your will, he can`t serve as a witness. In addition, all witnesses to legal documents must be over the age of 18 at the time of your signature. One of the most common types of agreements we work with is the transfer of intellectual property (IP) rights.
An IP assignment can be written as a certificate, but in many cases it does not have to be. This may also be the case with other agreements you are reviewing. If a document was prepared as an act, you should consider whether it could be amended so that it can be performed as a simple contract (in this case, cookies are not necessary). More than 150 years ago, case law established that a party to a document cannot also act as a witness to the execution of such a document.  While there is no legal requirement that a witness be “independent” (i.e. Since a witness may be invited to testify impartially about the signature, it is considered a best practice for a witness to be independent and, ideally, not to be a spouse, life partner or close family member of the person signing the document. There are no specific obstacles preventing minors (under the age of 18) from appearing as witnesses, although it is safer to call an adult witness to avoid later questioning the reliability or mental capacity of the witness because of his or her age. Deeds are often used for other documents, such as: For the above reasons, a witness is required when a person executes a document or a company or LLP executes an act through a single signatory.