SIGNED, SEALED & DELIVERED:
EXECUTION OF DEEDS IN THE ELECTRONIC AGE
Apologies on behalf of the English legal system: Deeds are an old-fashioned curiosity from the era of top hats and frock-coats where the extra frills and furbelows of witness signatures make up for a lack of money or other value changing hands. In English legal language: Deeds are enforceable as a “specialty” if all formalities of witnessing are observed, notwithstanding lack of valuable consideration. Continental European-inspired legal systems on the other hand have no truck with such niceties: contracts must be for actual money or value.
The point of having a witness is to get evidence if needed, so your witness must be willing to be called later to give evidence eg in an enquiry or court case.
If you are executing the Deed on behalf of your company you can ask your fellow director (if you have one) or your company secretary (if you have one) to co-sign with you. If you are the sole company director and don’t have a company secretary then ask eg a family member, colleague, friend or neighbour or a professional person to stand as witness. If you are executing the Deed as individual in your personal name, then ask eg a family member, friend or neighbour or professional (eg solicitor barrister accountant) to be your witness. (NB the rules for wills and testaments are different- the witness cannot be someone who stands to benefit as beneficiary under the will).
If you ask a professional person to be your witness it must be someone not already advising on the preparation or the subject matter of the Deed, so not the lawyer who drafted the Deed. The professional witness could be someone who has advised you on other matters in the past so long as that professional did not advise on anything to do with the Deed in hand.
If in doubt check with your lawyer about who is going to be your witness, and line up your lawyer to be on standby when you are about to do the signing.
Your witness may charge eg for travel expenses, solicitors traditionally charge a courtesy “swear fee” of £10 but may also charge by the hour for witnessing , since professionally they have to keep a record for 6 years.
Ideally you and your witness should be signing a paper document with real ink (the wax seal can be put to one side these days). Also you should both be in the same room at the same time. There is a legal case from the era of Jane Austen about someone looking through a window and seeing someone signing as witness a Deed while seated in their carriage and which was deemed to be witnessing in their presence. The Report of the Real Property Commissioners 1833 referred: it is considered to be sufficient if he is in a position in which he might by possibility see them, as, through a broken window, or, where he is in a carriage in the street, and they are in a room with a window towards the street ( case of Coxe v Bassett 3 Ves 16 0 ). All very Mr Darcy.
In our modern age we can find some accommodation with electronic technology such as pdf’s, DocuSign and RightSignature. However, even DocuSign do also remind in their small print of the importance of physical presence. To that end:
1 Don’t do any signing yourself until you meet up with your witness.
2 you should be in the same room even if both you and your witness sign by DocuSign.
3 your witness must watch as you sign eg stand by your desk as you do the DocuSign or as you write and scan your signature or as you put your electronic signature on a PDf
4 After the witness has watched you sign the Deed, your witness must put their signature, their full name in capitals and their postal address where they can always receive snail mail (NB not just their email address).
Having your witness visually present in real time by remote means (eg video conference call ) to watch you do the signing was an emergency concession given only during the exigencies of COVID lockdown, so won’t cut it now.
After signing, you may skip the red sealing wax nowadays, but the Deed must still be dated and delivered – that means sending the Deed fully by hand by post or by email or an electronic signing portal as a signed and dated Deed to all parties and saying the magic words “now delivering the Deed”. In true Jane Austen spirit, make a faithful diary note the same day of how it was all signed [sealed] and delivered.
As “belt and braces” just in case any formalities of Deed witnessing are not quite up to scratch, also put in a signature payment of real money- at least two figures to make for “valuable consideration” and pay that sum in real cashflow and get a receipt. The token £1 that never gets paid is an old tradition yet one which may not stand the test of time.
ANGELA JACKSON July 2024
(no liability is given for non-specific advice)