Electronic signatures are used extensively on all manner of legal documents. However where the functionality of the leading platforms (such as Docusign and Adobe Acrobat Sign) have advanced significantly, the MoJ has yet to implement any of the industry working group’s recommendations that were published in its interim report in February 2022 and final report in February 2023.

Deeds must be signed in the presence of a witness who attests the signature of the signatory and be delivered as a deed (section 1(3), Law of Property (Miscellaneous Provisions) Act 1989.

A practice note by the Law Society of England & Wales states that there is a requirement for a witness to be physically presence when a deed is signed on an e-signing platform.

While the requirement for a physical presence does not impede the electronic execution of deeds, it is certainly a deterrent and makes the practice of signing deeds by e-signature more complex and cumbersome than that of simple contracts.

Remote Witnessing

There are calls to allow the remote witnessing of e-signatures of deeds on commercial e-signing platforms. Both Adobe and Docusign have API (Application Programming Interface) integrations with Microsoft Teams that are used for approving and signing documents.

These integrations can also enable the remote witnessing of deeds, e.g. by having a video recording of the signing that can be included into the digital audit trail. Other metadata can be recorded such as the witness’s name, email address, IP address and a second authentication factor. This would provide definitive proof that the attesting witness observed the signing of the deed and allay any fears that the signatory acted under duress.

So although the technology is already available to provide secure remote witnessing of e-signatures, the government still needs to update the statute to enable this as a legal possibility.