News & Insight

E-signatures August 13, 2020
Video-witnessing and e-signatures – an update on signing formalities

Video-witnessing and e-signatures – an update on signing formalities

We recently commented on the various tools individuals have at their disposal in order to execute documents and deeds remotely.

The UK government continues to embrace new methods of witnessing and e-signatures (albeit temporarily).

HM Land Registry now accepts electronic signatures.

Whilst use of electronic signatures is more common than ever before, one of the key obstacles to widespread adoption has been that HM Land Registry had until now refused to accept electronic signatures. A public body (such as the Land Registry) has the power to decide which execution methods are admissible regardless of the legal position. This is due to the fact that the Land Registry “needs to have control of the means of execution used for documents that must be registered, particularly where title guarantee is offered”.

That has now all changed with the announcement from the Land Registry on 27 July 2020 that electronic signatures will now be accepted – provided certain requirements are satisfied – for the following:

  1. Transfers of property ownership
  2. Leases
  3. Mortgages

The requirements that need to be satisfied before the Land Registry will accept electronic signatures are as follows:

  1. All the parties agree to the use of electronic signatures and to the use an online signing platform in relation to the deed.
  2. All the parties must have conveyancers acting for them.
  3. A conveyancer is responsible for setting up and controlling the signing process through the platform.
  4. The following process then needs to be followed:

(a)  The deed will need to be uploaded onto the chosen platform and details of signatories and witnesses will need to be provided.
(b)  The platform will send a link out to the signatories notifying that the deed is ready to sign.
(c)   The platform will need to implement a two-factor authentication process for the signatories and witnesses so that a party will only
be able to access the deed via the email they received unless they also input a one-time password which has been sent to their
phone.
(d)  Each signatory signs the deed in the physical presence of the relevant witness, with the date and time being automatically
recorded within the platform’s audit trail.
(e)  The relevant witness will then receive an email from the platform inviting them to sign. They will then sign where appropriate with
the date and time being automatically recorded again.

Once everything has been signed, a conveyancer effects completion of the deed by dating it within the platform. The completed document can then be submitted electronically to the Land Registry with the relevant registration application and the conveyancer must certify that the relevant requirements have been satisfied.

The acceptance of electronic signatures by Land Registry has not removed the requirement for witnesses to be physically present. A witness’s “virtual” or “remote” presence is insufficient and so even though the signatory and the witness will receive separate emails attaching the document for signature, the witness must be physically present at the signing by the signatory.

The two-factor authentication requirement is not necessary by law per se when executing deeds or documents electronically.  This has been introduced as an additional requirement bespoke for the time being  by the Land Registry.

Note also that the Land Registry acknowledged on 27 July 2020 that, when researching the market in electronic signature providers, none quite fitted their desired requirements.  And therefore watch this space as e-signature software providers seek to adapt their products to fit.

Use of video-conferencing when witnessing signing of wills

Separately, the UK government is introducing legislation in September 2020 which will allow individuals to use video-conferencing technology when witnessing a will.

The legislation addresses a real need as during the pandemic the requirement to find a witness to be physically present has presented unique and unforeseen challenges.

As a result, the Wills Act 1837 is being amended in order to update the meaning of “presence” in relation to individuals witnessing signatures of wills.

Presence will – temporarily – include a virtual presence via video-link as an alternative to physical presence.  The legislation will apply to wills made after 31 January 2020, except:

  1. cases where a grant of probate has already been issued in respect of the deceased person; and
  2. the application is already in the process of being administered. 

A clear line of sight

Currently a witness to a will must:

  1. have a clear line of sight of the person making the will; and
  2. understand that they are witnessing and acknowledging the signing of the will.

The new legislation allows for the clear line of sight to exist via a video-conferencing platform, rather than a physical one. Nevertheless, the witnessing must be done in real-time and shouldbe recorded (if possible).

The UK government has set out a five-step process as regards video-link witnessing, set out here.

Looking ahead

The use of video-links for witnessing wills and deeds, has been at the centre of an ongoing debate around the meaning of “presence” (when it comes to witnessing signing of a deed) within the legal profession for quite some time.  Witnessing by video has never been accepted as a valid method of witnessing documents.

Now, in the case of wills only and for a trial two-year period only, video-witnessing will be allowed.  Query how long before video witnessing is permitted for executing deeds generally and becomes the norm.  We think that is probably the direction of travel, but we might take quite a few years to get there.

This piece was researched and prepared by Amir Kursun.

All the thoughts and commentary that HLaw publishes on this website, including those set out above, are subject to the terms and conditions of use of this website.  None of the above constitutes legal advice.  Much of the above will no doubt fall out of date and conflict with future law and practice one day.  None of the above should be relied upon.  Always seek your own independent professional advice.

 

Humphreys Law

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