Take, for example, witnessing a signature to a deed.
A deed is a document that, among other requirements, must be executed with an enhanced degree of formality – in the presence of a witness – in order for it to be enforceable.
Deeds are commonly used in a variety of personal and commercial transactions and are required for wills and most property matters.
To validly execute a deed, an individual must sign a deed in the presence of a witness who attests the signature. Wills must be executed in the presence of two witnesses.
The current legal position is that a witness must be physically present when the deed is signed.
Attendance via Skype, Zoom or any other video calling or conferencing technology does not satisfy the presence requirement, according to the Law Commission’s 2019 report Electronic Execution of Documents.
One can imagine that in times like these when so many people are self-isolating or practising extreme social distancing to minimise the spread of the coronavirus, an individual needing to execute a deed may be hard-pressed to find a witness who can be present to witness his/her signature.
One could take inspiration from people who have been greeting elderly relatives through closed windows, and watch someone sign a deed through the window, step back while they put the document on the outside window sill, and then sign to attest it (using a different pen, of course).
Or perhaps someone living in a flat could sign a deed on their own balcony, witnessed by someone on a neighbouring balcony – although flinging the deed across the gap might be a challenge too far.
The difficulty of finding an appropriate witness is compounded by the need for the witness to be independent and able to provide, if necessary, unbiased evidence of the timing and circumstances of the deed being signed.
For this reason, though it is not actually unlawful, it is not advisable to ask family members to act as witnesses but better to rely on neighbours or disinterested third parties.
At present, this is likely to be problematic given the social distancing measures in place in many parts of the world.
