During these unprecedented times a lot of focus is placed on maintaining our usual routines and every day practices. This involves continuing business practices, to the best of ones ability. With many people working from home, it is essential for us as lawyers to establish how our practice can continue in order to assist our client's needs.
We are fortunate as lawyers that we may provide advice through electronic forms of communication which allows us to comply with the social distancing principles that are essential to fight the spread of Covid-19. However, there is still a need to sign documents to create legally binding agreements and therefore it is imperative to ensure that this can be done effectively through electronic means.
This article sets out the electronic signing formalities for contracts and deeds. Please note that we do not address the signing requirements for real estate documents.
The Law Commission published a report on the electronic execution of documents on 4 September 2019, which was endorsed by the Lord Chancellor on 3 March 2020. This report confirmed, among other things, that an electronic signature is capable in law of being used to execute a document (including a deed) provided that the person signing the document intends to authenticate the document and any relevant formalities relating to the execution of that document are satisfied. Examples of such formalities include that the signature be witnessed. Further, the "in the presence of a witness" requirement demands the physical presence of that witness and this remains the case even where both the person executing the deed and the witness are executing or attesting the document using an electronic signature. We would be happy to talk you through the requirements imposed on witnesses for these purposes.
This, however, does not apply to wills, lasting powers of attorney or documents required for land law purposes.
As your legal advisors, we will discuss with you the protocols which we can put in place to allow for documents to be duly executed. We will endeavour to discuss this with you as early on in the process as practicable to ensure that there are no nasty surprises at the 11th hour.
Power of Attorney
In certain circumstances we, Trowers, may be able to act as an attorney for a client. This will be discussed on a case by case basis. Please do get in touch if this is something you would be interested in and we would be happy to discuss this with you.
One of the lawyers dealing with the matter will send the final version of the deed to all parties, most likely via email. The signatories will need to print the signature (or the entire deed), sign the deed were necessary and have the present witness attest the signature and then scan the signature page (or the entire deed) back to the lawyer who circulated the deed. If only the signature page was printed and signed then a copy of the final form deed must also be attached to the email.
In the event that only an electronic signature and attestation can be added to the deed, those executing and witnessing must confirm that the will comply with the legal formalities of the deed at the next available opportunity. The witness must also be physically present when they are attesting the electronic signature of the signatory.
As with deeds, one of the lawyers acting will circulate the final version of the document to all parties. The signature page should be printed by the signatory and then returned to the lawyer who circulated the document with consent that this page may be attached to the final form document. The same principle applies if an electronic signature is applied to the document.
If a contract (which is not a real estate contract) is still being negotiated, it is possible for the signing parties to still execute the document electronically in preparation for completion. The lawyer acting will circulate a signature page which should be printed, signed and returned (or electronic signature applied and returned) and then this is held to the order of the signatory. Once the final form document is circulated to all parties, the signatories will release the signature page and confirm that it can be attached to the final form document.
Please do not hesitate to contact Trowers for advice on how these processes may be applicable to your situation.