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28th February 2020

Can a deed be virtually witnessed?.

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The law in England states that when an individual is executing a deed, they must do so in the presence of a witness who then confirms the authenticity of the signature (section 1(3) Law of Property (Miscellaneous Provisions) Act 1989) by signing the deed. A recent case looked at what “in the presence of” means in the contemporary working world. The case of Yuen v Wong had to rule on whether a deed was validly witnessed if the witness was ‘virtually’ present (as opposed to physically) whilst the deed was signed. This case centred around a suspected forged transfer, whereby the property was transferred from joint owners to only one of them. An additional argument that arose was whether the signature on the transfer was valid, as the signing (which took place in Hong Kong) had been witnessed over Skype, with the signature of the witness only later being attested once the transfer was sent to the UK.

The decision made by the Tribunal was that although the signature was not rendered invalid by the attestation occurring later, the witnessing over Skype could result in the courts deciding that the deed was not validly executed. The ruling was on whether the Applicant had a realistic prospect of success and therefore did not decide the issue. It is likely with the speed of technological advances; it will not be long before the courts will be required to provide binding authority on this issue. However, until a judgment is made by the court, the best approach is for a witness to be physically present when a deed is signed.

For further information contact Sophia Papworth on 01223 532701 or click here to email Sophia.