In certain circumstances, a signature to a deed must be attested by a witness and we often get asked “why?” and “who can be the witness?”. There are a number of advisory steps we would urge you to consider, when choosing the witness.
Why do I need my signature witnessed?
If the executing party is an individual, to validly execute the document it must either be signed by the individual in the presence of a witness who attests the signature, or at the direction and in the presence of the individual and the presence of two witnesses who each attest the signature.
If the executing party is a company and a director is signing on behalf of that company, the executing director must sign in the presence of a witness who attests the signature.
Who can act as a witness?
Given that the purpose of requiring a party’s signature to be witnessed is to provide, if necessary, unbiased evidence of what was signed, by whom and when, independent witnessing should always be required as a matter of best practice and the witness should not:-
- Be a party to the deed e.g. if Mr Jones and Mrs Jones are purchasing a property, Mr Jones cannot be Mrs Jones’ witness for her signature on the transfer form (and vice versa) as they will both be required to execute the transfer as the buyers.
- Be under the age of 18 – although there is no apparent prohibition against a minor acting as a witness, there is scope to argue they are not mature enough to understand and therefore their evidence would not be reliable should it later be required for them to verify the circumstances of the execution.
- Be the signatory’s spouse, co-habitee, civil partner, employee or co-director.
- Have any personal, financial or other interest in the provisions of the document e.g. if Mrs Carter was signing her will leaving everything to her daughter, Ms Cater, Ms Carter should not witness Mrs Carter’s signature.
What does attestation mean?
When you witness a person signing a deed you are said to be “attesting” their signature which means the following:-
- You have witnessed the document being signed by that person; and
- You sign and state your name, address and occupation.
By agreeing to witness a signature, you are agreeing to give unbiased evidence of what was signed, by whom and when if this is required at a later date if the validity of the document or the circumstances of the execution are called in to question at a later date.
Do I have to be with the signatory when they sign to act as a witness?
Yes, you must be physically with the signatory when they sign to witness correctly.
This is a statutory requirement and is required even if the document is being executed electronically.
Can I witness more than one signatory?
Yes. In the case of Mr and Mrs Jones, if their next-door neighbour Mrs Keith was present when both Mr and Mrs Jones signed the transfer deed, Mrs Keith would be able to sign as witness for both parties.
Mrs Keith would have to attest to both signatures and would therefore have to sign and state her name, address and occupation under both signatures.