Having a witness to a signature on a legal document is a legal requirement in the UK. Without a witness to a signature, the authenticity of the signature and the documents can be questioned. Even worse, the document may not be accepted in court as evidence. There are different legal witness requirements for different kinds of legal documents.
Documents such as wills, codicils, deeds, power of attorney, and affidavits among others, all require a witness to signature. But, it’s not just anyone that can stand as a witness. For instance, a baby can’t stand as a valid witness, neither can a person with an unsound mind.
This article will cover:
The essential role of a witness in legal documents and how they help prevent fraud.
Who is legally allowed to witness a signature in the UK?
Special considerations for different types of documents, such as wills, deeds, and powers of attorney.
The legality of remote witnessing and electronic signatures.
Common mistakes to avoid when selecting a witness.
What is the Role of a Witness in Legal Documents?
The old saying that “seeing is believing” is essential in all legal processes. Whatever claims you make are only as good as someone else verifying them. As such, having a witness observe that you signed a legal document is highly important. With a witness, it’ll be a lot easier for the court to believe that a legal document is genuine.
Besides proving the authenticity of a legal document, having a witness helps prevent fraud such as forgery or impersonation. Where there’s a witness, the court can easily query the witness to testify to the authenticity of the document and also the person behind the signature on the document. This rules out the possibility of impersonation or even collusion.
Given the usefulness of having a witness to a legal document, it has become mandatory for sensitive legal documents to be signed before a witness. This layer of formality in creating a legal document makes it more enforceable and legally binding.
The law and its courts generally operate on the strength of evidence. As such, every claim that is raised in court must have at least a witness to back it up. It is through witnesses that evidence can be given in court.
Who Can Legally Witness a Signature?
Although having a legal witness to a signature is important, not everyone can stand as a witness. There are general and specific requirements for witnessing a signature in the UK.
The general legal witness requirements include:
Age
A witness must be at least 18 years old. The law only recognises persons who have attained maturity as being legally competent to act as a witness. This is based on the idea that mature persons can think and act reasonably and independently. They also understand the gravity of situations better.
Relationship
A legal witness should not be related to the signatory or have any personal interest in the document. While it’s easier to get a family member to witness a legal document, the law requires a non-related person who also has nothing to gain. This helps to maintain the objectivity of the witness and avoid conflict of interest.
Mental Capacity and Understanding
The only reason why minors are not allowed to serve as legal witnesses is that they may not understand the gravity of the situation. This also applies to some other mature persons. The law expects that a witness must be of a sound mind and fully conscious of what is happening. As such, persons who are insane, unconscious, hallucinating, or mentally challenged in any way, cannot stand as legal witnesses to a signature.
Presence
The law requires a witness to be present during the signing of a legal document. Hence, only someone who is going to be physically present can be the legal witness. While physical presence is the standard, remote witnessing via live channels is still acceptable.
Special Considerations for Different Types of Documents
While the general requirements mentioned earlier are applicable in most cases, different legal documents often come with specific requirements for witnessing.
Here are a few specific requirements depending on the type of document:
Wills
A wills solicitors can guide on the Wills Act 1837, which requires at least two witnesses who are not beneficiaries of the will. This helps to prevent undue influence, coercion, or conflict of interest. In the same vein, spouses cannot stand as witnesses to a will. This is due to the fact that wills typically include spouses as beneficiaries, and as such, there may be undue influence.
When signing a will, section 9(c) Wills Act expects that the witnesses are all present to witness the signing and also verify the identity of other witnesses present. Section 9(d) further instructs that a wills signature witness may sign the will in the presence of the testator who made the will, without necessarily being in the presence of other witnesses.
Deeds
Deeds which convey legal ownership of land typically require witnesses to be physically present. A general deed witness rule is that witnesses must not be parties or beneficiaries of the transaction. Unlike a will, a spouse may witness the signing of the legal document.
Powers of Attorney
According to Schedule 1 section 2(1)(e) and 2(6) of the Mental Capacity Act 2005, a legal witness cannot be the beneficiary under the power of attorney. Under the MCA 2005, a power of attorney can be created for persons above 16 years old who are incapable of making decisions and caring for themselves. In such an instance, a power of attorney can be created to allow someone else to make those decisions. Per section 9 of the MCA 2005, a lasting power of attorney could also cover issues of both personal welfare and property management.
Simple Contracts
These are documented agreements between parties with no stringent conditions. Here, choosing a witness is flexible, but it is more advisable to meet the general requirements.
Corporate Documents
When witnessing corporate documents such as company resolutions, it is expected that company directors sign or witness the signing of documents. Typically, witnessing could either be two directors or a director and the company secretary. This usually applies when the company seal is being used on the document. Outside this, a director and an independent witness may stand as legal witnesses to a signature on a corporate document.
Remote Witnessing: Is It Allowed?
Since the COVID-19 pandemic, there has been a consistent push for remote witnessing of legal documents. Given that virtually all corporate and legal activities were moved to virtual channels, there have been strong arguments favouring remote witnessing.
But then, remote witnessing didn’t receive a quick stamp of approval. With COVID-19 showing that corporate and legal matters can be held virtually and still be genuine, remote witnessing has gradually gained acceptance.
In remote witnessing, it’s important to use legitimate electronic signatures and live video conferencing platforms. This is to further strengthen the authenticity and documentation of the whole signing process.
Electronic Signatures and Video Links
Note that electronic signatures are different from electronic witnessing. Electronic signatures are dedicated platforms that allow the digital or electronic signing of documents just like handwritten signatures.
Electronic witnessing on the other hand is witnessing a signature via live video conferencing channels. The video links are first shared with witnesses who will join the call and observe the legal signing process.
Depending on the type of document, witnesses may also electronically sign documents attesting to them witnessing the legal signing process.
When Remote Witnessing Might Be Acceptable
Generally, physical presence is the standard for witnessing a signature. However, there are instances where remote witnessing may be acceptable. These are usually compelling circumstances such as:
Emergency: Where immediate action is required, such as a will near death, remote witnessing may be allowed. Similarly, urgent company resolutions may be signed and witnessed electronically.
Remote Locations: Where the signing parties are located in a remote area, witnesses may be allowed to witness electronically. The same applies if the witnesses are far out of reach.
When Remote Witnessing May Not Be Acceptable
Note that remote witnessing is primarily a matter of convenience and necessity. As such, where it isn’t necessary, remote witnessing may not be acceptable.
Some instances where remote witnessing may not be acceptable include:
Complex Transactions: For complex transactions such as high-value sales or business deals, it’s advisable to insist on physical witnessing to ensure the authenticity and legal enforceability of the documents.
High-Value Transactions: Transactions involving large sums of money or valuable assets cannot be treated lightly. As such, it’s better to have witnesses physically present to reduce the risk of fraud.
Sensitive Transactions: Issues bordering on non-disclosure, confidentiality and sharing of sensitive information are better witnessed physically. Electronic links can easily be hijacked or sabotaged compared to a physical meeting.
Jurisdictional Challenges: If you’re not sure about the legality of remote witnessing in a particular jurisdiction, it’s best to avoid it and stick to the standard.
Common Mistakes to Avoid When Choosing a Witness
Choosing the right witness is the difference between having a pointless document and one that is valid and enforceable by law. To avoid invalidating your documents, you should avoid these common mistakes:
Choosing a Party to the Document: One of the most common mistakes in witnessing is that a party to the transaction doubles as a witness. For instance, one party witnesses the signature of the other, and vice versa. This careless mistake can easily invalidate the document.
Choosing a Minor: Individuals under 18 years generally lack the legal capacity to act as witnesses. Their testimony is typically inadmissible in court. Hence, it’s safer to go for someone above 18 years.
Choosing a Person with a Track Record of Mental Incapacity: Individuals with mental challenges are typically unfit to stand as witnesses to a document. If there are traces of mental instability such as periodic hallucinations, reports of hysteria and the like, it’s better to find someone else. The rule remains that a person of unsound mind cannot understand the gravity of a situation, hence cannot serve as a legal witness.
Choosing a Beneficiary: The default rule is that a witness should have no personal interest in the transaction being signed. Hence, choosing a beneficiary or someone with a vested interest in the document is as good as creating a loophole to invalidate the document. Whenever there’s a conflict of interest, the person’s objectivity can easily be clouded.
Choosing a Person Who is Not Present: Physical witnessing is the standard for any legal document. As such, choosing an unavailable person frustrates the essence of witnessing. Even in the instance of remote witnessing, such a person must be available and signed onto the live video conferencing channel at the appointed time.
Generally, choosing the wrong kind of witness leads to invalidating the document. It could also evolve into costly legal battles trying to prove the document's authenticity and rectify the error. But fortunately, you can still rectify errors.
If you realise early that you’ve chosen an unfit witness, you can do any of the following:
Quickly notify the other party and pause further transactions
Get a new witness who meets the requirements, and discuss with the other party.
Amend the attestation part of the document, or create a fresh document to be signed and attested to.
If the document is already attested to, you can create a counter-attestation document. This acts like a codicil or attached amendment that repeals the old witness attestation.
FAQs
Can a family member witness a signature?
Yes, depending on the type of document being signed, and if the person isn’t a beneficiary or party to the document.
What happens if the witness is not independent?
The witness may unduly influence the signing of the document, and that leaves the document at risk of being invalidated.
Is a lawyer required to witness all signatures?
No, a lawyer doesn’t have to witness all signatures. It depends on the document and the jurisdiction laws.
Can electronic signatures be witnessed remotely?
Yes, an electronic signature can be witnessed remotely provided that video links are shared before the signing.
What should I do if I need a witness but cannot find one?
Ask a solicitor. A solicitor can validly stand as a witness.
Conclusion
Choosing a proper witness for legal documents is essential for strengthening their authenticity. The witness acts as an objective third-party verifier of the document and confirms the identity of the signatories.
By choosing a suitable witness, you’ll be protecting yourself from fraud, forgery, and claims of illegitimacy. While there are general requirements about who can witness a signature, there are unique requirements for different types of legal documents.
Don’t risk the validity of your important legal documents by guessing who can witness your signature. When in doubt, you can reach out to LawHive for advice and legal guidance. Our experienced legal team and property solicitors understands the nuances of UK law and can guide you through every step of the process, whether you need help selecting a witness, drafting legal documents, or understanding your legal obligations.