Summary
- Not all commercial contracts require a witness, but documents executed as deeds — including property transfers, most commercial leases, powers of attorney, and certain guarantees — must have signatures witnessed to be legally valid.
- A witness must be an individual who is not a party to the deed, and whilst the law does not strictly prohibit family members or employees from witnessing, best practice is to use an independent adult to provide neutral evidence and minimise fraud risk.
- Electronic signatures are generally valid for deeds, but the witness must still be physically present when the signature is made, and certain personal documents such as wills and lasting powers of attorney require traditional wet ink signatures.
- This article is a guide to signature witnessing requirements for businesses and individuals in England and Wales, explaining which contracts require a witness, who can act as one, and how witnessing must be carried out.
- LegalVision is a commercial law firm that specialises in advising clients on commercial contracts and document execution.
Tips for Businesses
Identify whether your contract must be executed as a deed before signing, as this determines whether witnessing is required. Always ensure your witness is physically present at the time of signing, even for electronic signatures. Use an independent adult witness rather than a family member or party to the agreement to reduce the risk of the document being challenged.
Not every contract requires a witness, but for certain agreements, the witnessing of your signature is a legal requirement that cannot be overlooked. Failing to meet these formalities can render your contract invalid and unenforceable. This article will explore which contracts require a witness, who can serve as a witness, and how they can witness your signature.
What Types of Commercial Agreements Require a Witness?
Not all commercial contracts require the witnessing of your signature. For example, a simple agreement (such as a purchase order for a printer) does not require anyone to witness your signature.
However, certain agreements may require a witness, or a contract may be required to be executed as a ‘deed’. In the case of a deed, your signature must be witnessed to be valid, and other formalities must be observed.
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For example, if you intend to sign a deed as the sole director of your organisation, another individual must witness your signature. The formality applies whether you sign the document in person or through an electronic signature (known as electronic execution).
It is important to note that deeds are typically used for more significant transactions or when required by law. Some common examples of documents that may need to be executed as deeds include:
- property transfers;
- most commercial leases;
- power of attorney documents; and
- certain types of guarantees.
Personal Legal Documents That Require a Witness
Important personal documents may also require your signature to be witnessed. For example, you may require someone to witness a signature on mortgage documents or land registry forms. Some lawyers include space for a witness to sign legal documents as a matter of good practice.
Other personal legal documents that often require witnessing include:
- wills;
- lasting power of attorney;
- statutory declarations; and
- affidavits.
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How Does Someone ‘Witness’ My Signature?
Witnessing a signature in person is relatively straightforward. First, the individual has to watch you sign the document and then sign it themselves to confirm that they saw you sign the document.
However, witnessing a signature electronically is slightly more complex. You can usually sign a deed electronically (such as using an e-signature platform). However, your witness must still be physically present when witnessing your signature. To be sure that your deed has been validly executed, you should ensure that the witness is physically with you when you are signing.
Who Can Witness Your Signature?
When signing a deed for your company as a sole director, your witness must be:
- an individual (rather than a company); and
- someone who is not a party to the deed.
There are generally no other requirements at law for a witness. The law does not specifically say that a witness has to be ‘independent’ or ban spouses, civil partners, minors, or employees from being witnesses. However, since the primary job of a witness is to provide neutral evidence about what was signed, when, and by whom, it is generally better to have someone independent do it.
Therefore, it is best practice to avoid asking minors, spouses, civil partners, or other family members to be witnesses. Most lawyers will witness a signature for a minor fee if required.
It is worth noting that some documents, such as wills, have stricter requirements for witnesses. For instance, beneficiaries of a will or their spouses cannot act as witnesses to the will’s signing.
Why Do We Have Witness Rules?
Witness requirements are vital to minimise the risk of fraud and forced signature. The general principle is that having a witness will ensure a more honest account of signing and help limit coercion of an individual who does not want to sign the document.
Key Takeaways
The witness requirement will depend on the type of contract your business is entering into. Once you establish that a witness is required, select a suitable witness and ensure they are physically present when witnessing your signature.
If you need help with signature witnessing requirements, LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced contract lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
It is straightforward. Most high street firms can schedule a 15-minute witness appointment with a lawyer for a small fee.
Witness restrictions can be avoided in limited circumstances. For example, signing a document as a ‘simple contract’ rather than a deed may be possible. However, this depends on the contract terms and other legal requirements.
While electronic signatures are legally valid for many documents, some exceptions exist. Certain documents, such as wills and lasting powers of attorney, still require traditional “wet ink” signatures. It is always best to consult a legal professional to ensure your electronic signature is valid for your specific document.
Generally, the witness needs to be present in person to see the person sign the deed. It does not matter if the signature is done electronically or with a pen—the witness still has to be physically present when it happens.
If a signature is not witnessed correctly when required, it could invalidate the document or make it unenforceable. In some cases, it might be possible to rectify the situation by re-executing the document with proper witnessing. However, this is not always possible, especially if significant time has passed or circumstances have changed. This underscores the importance of ensuring all witnessing requirements are met when signing.
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