Electronic signatures range from a squiggle on a courier's pad, a name typed into a website to an encrypted code generated by a security dongle and, in short, are valid and admissible in evidence in legal proceedings.
When asked to provide a brief, unequivocal declaration of the law covering documents executed with an electronic signature the Law Commission managed to produce an eight-paragraph statement of the law covering the issue, despite the wide range of available authorities, including the common law, statute and case law.
A closer look at the 124-page report suggests that several “grey” areas remain as two significant categories of document – Wills and registered dispositions under the Land Registration Act 2002, are currently excluded.
Electronic Signatures & Wills
Wills must be signed in accordance with the proper formalities contained in s9 Wills Act 1837. A Will must be in writing and must be signed by the person making the Will (the “testator”) in the presence of two independent witness, who should then also sign the Will in the presence of the testator. If the Will has not been correctly signed and witnessed then it may be invalid and the estate could pass in accordance with any earlier Will, or in accordance with the laws of intestacy if there is no previous valid Will. Problems with homemade Wills could be even more prevalent if electronic signing and witnessing were to be introduced.
In addition, the witnessing of an electronic signature is, in itself, problematic. In its consultation document, the Commission initially proposed that it should be possible to witness an electronic signature remotely via video link and then to attest the document. It now, more cautiously, recommends that the requirement for a deed to be signed “in the presence of a witness” requires physical presence of the witness.
Perhaps more importantly, the report expresses concern that it may not even be possible to witness an electronic signature even when the witness is physically present. HM Land Registry, in particular, states that it is not possible for an electronic signature to be physically witnessed in the way that a pen and ink signature can. A human being cannot be certain that a data string representing a signature is indeed being applied to a data string representing a document. This is a huge setback for attempts to digitise the conveyancing process.
Electronic Signatures & Lasting Powers of Attorney
Finally, the Law Commission's report is critical of government efforts to set up an online process for applying for Lasting Powers of Attorney. Concerns had already been raised over the current system's potential for abuse and numerous respondents to the Law Commission's consultation felt that allowing Lasting Powers of Attorney to be executed with an electronic signature would only increase the risk. The Law Society stated that “the removal of physical signatures removes an essential safeguard against abuse of a highly vulnerable sector of society.”
The Commission concludes that both the Office of the Public Guardian and the Ministry of Justice must “consider what is sufficiently secure and reliable for donors before introducing any system using electronic signatures,” suggesting that the wet signature, witnessed and attested in person, will be with us for at least a few more years.
If you require any further information regarding this blog then please contact me, Keith Baldock-Grimes on 01283 214231 or at k.baldock-grimes@timms-law.com.
