Does a witness need to sign in the presence of the executing party?

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The High Court recently considered, in Wood v Commercial First Business Limited (in liquidation) (“CF”) whether it was necessary for a witness to sign a deed in the presence of the executing party.

Wood, a farmer had entered into mortgages over her two farms with CF. The mortgage payments fell into arrears and CF started possession proceedings. Wood challenged the validity of the mortgages for a variety of reasons. In respect of one of the mortgages, Wood contended that it was not valid because although her signature had been witnessed, the witness had not signed the mortgage deed in her presence.

S.1(3) of the Law of Property Act (Miscellaneous Provisions) Act 1989 (LPA 1989) states that when a deed is executed by an individual they must sign in the presence of a witness who attests the signature. The courts had to decide exactly what this meant.

The High Court considered the proper meaning of s.1(3) of LPA 1989 and decided that the proper interpretation was, that the only requirement was for the person executing the deed to sign in the presence of a witness and that the witness does not need to sign the deed in the presence of the person executing the deed, or anyone else.

This case provides some clarification on the meaning of s.1(3) of LPA 1989. Provided the person signing as witness was intended to be a witness to the person executing the deed, they do not have to sign the deed in the presence of or at the same time as the executing party.

For further information, please do not hesitate to contact a member of the Geldards Commercial Team.

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