Witnessing A Document – Corporate/Commercial Law – Isle of Man – Mondaq News Alerts

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When an individual is required to sign certain documents
(usually as a deed), there is a requirement for there to be a
witness to the signing process. These documents include (but are
not limited to) the following:

  • A power of attorney;
  • A conveyance or transfer of
    land;
  • A mortgage;
  • A guarantee; and
  • A will (there is a legal requirement
    for two witnesses for this document).

Does the witness sign the document?

Yes. The individual who is party to the document will sign
first. The witness will then sign the document as well and note
down their details (usually full name, address and occupation)
underneath or next to their signature.

What is the purpose of the witness?

The purpose of the witness is to oversee the signing process and
if necessary, provide evidence that the document was signed
correctly and without duress. The witness will provide their
details in case they need to be contacted in future about the
execution of the document.

Who can be a witness?

Generally, there is no legal requirement for a witness to any
document to be independent i.e. not a relative or connected to the
matter. Although a party to the document cannot be a witness to
another party’s signature. However, given the purpose of the
need for a witness (as explained above) it would be best practice
to avoid having a witness who was related or connected in any way,
as an independent witness would be more likely to give unbiased
evidence.

It is also important to consider any requirements which may
specifically apply to the type of document that is being signed. In
the case of a will, a witness cannot be a beneficiary, because then
their interest in the will would be deemed invalid. Similarly, it
shouldn’t be a spouse of a beneficiary.

We would therefore advise that a witness should be over the age
of 18 and be independent. Independent witnesses can include
neighbours, colleagues, or professional individuals such as
accountants and advocates.

Can an individual witness the signature over skype?

No, a witness must be physically present. The witness must
physically see the individual signing the document, which means
that the document would be rendered invalid if the witness was
present over videolink eg. Skype, Facetime or Zoom.

Can an individual witness an electronic signature?

If an individual is required to sign a deed electronically, the
formalities of the deed must still be adhered to i.e. there must be
a witness. The witness must be physically present and observe the
individual affixing his electronic signature, and both must affix
their signatures at the same computer terminal.

However, there are certain documents which cannot be signed
electronically. In these situations, even if the witness was
physically present and affixed the electronic signature too, the
document would still be invalid.

Do companies require a witness when executing documents?

No. Depending on the type of company, a deed can be signed in
the following way:

  • For a company incorporated under the
    1931-2004 Companies Acts – any two directors or one director and
    the company secretary;
  • For a company incorporated under the
    Companies Act 2006 – any one director

For each, there is no legal requirement for a witness.

Covid-19

Given the current climate with the Covid-19 crisis, if an
individual requires a witness when signing, we believe that asking
a neighbour to be witness would be the most practical option. This
avoids the potential problems of having a non-independent witness,
if a member of the same household was to be asked. However for some
deeds, such as where a person is retiring as a trustee of a trust
and a deed is required to be executed, then if only a family member
is available to witness, this should not present a problem as it
will be clear from other communications from the retiring trustee
that he or she has expressed a wish to retire from the trust.

When the individual and the witness are signing the document,
together with adhering to the general social distancing rules of
staying two metres apart, we would recommend that each individual
who is required to sign the document wears protective equipment
such as gloves and mask and has their own pen.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Source: mondaq.com

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