Do Legal Documents Have To Be Witnessed?

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Do legal documents have to be witnessed? It depends. In some cases, a witness is a formal requirement for the validity of the document. For example, Wills require two witnesses, traditionally, in common law countries. In other cases, the absence of a witness does not affect the validity of the document, but is relied on as a matter of evidence. The witness can give evidence about who signed the document and when, in the event of a dispute, making it difficult for the signatory to deny that the signature is theirs.
If a witness is required for a document, this make create a problem if the person making the document wants to sign it electronically. Electronic signatures are becoming increasingly popular as more and more business shifts online. In Western Australia, where I live and work, a signature on a deed (a type of contract) needs to be witnessed. This requirement is imposed by law. Which makes it difficult to sign deeds electronically.
Generally speaking, it is a good idea to design binding legal documents so that the parties’ signatures have to be witnessed. Forgery of signatures sometimes happens. Requiring the signature of a witness is an anti-fraud device. If the signature of a witness is not a formal requirement, however, then the failure to get a witness to sign may have no effect on the validity of the document. In other words, if you sign a document, it may still bind you even if it isn’t witnessed, or at least make it difficult for you to deny the correctness of the contents of the document.
Another thing to watch out for is the language of the signature clause. In most places, companies have different signature clauses to individuals. If the wrong type of signature clause is used, the document may be open to challenge or even void.
[The author of this post, James Irving, is a commercial lawyer in Perth, Western Australia. If you require assistance with a commercial document in Western Australia, please contact Irving Law. Picture credit: Detail from the painting Lawyer Reading in his Study by A van Ostade (1610-1685), now in the Louvre Museum, Paris, a public domain image by takomabibelot courtesy of Wikimedia Commons and the Louvre Museum. CC BY 2.0.]

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