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witnessing a signature: can anyone do it?

including wills and probate
bruncher
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witnessing a signature: can anyone do it?

#126408

Postby bruncher » March 20th, 2018, 1:43 pm

Can close family members witness a signature on a commercial contract? Is there a minimum age requirement of the witness?

I have been trawling a family archive and discovered that as a 19 year old I was a witness to my father's signature (that was in 1974, in case the law has changed) on a contract which is still operating.

JonE
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Re: witnessing a signature: can anyone do it?

#126430

Postby JonE » March 20th, 2018, 2:20 pm

bruncher wrote:... as a 19 year old I was a witness to my father's signature (that was in 1974, in case the law has changed)


The Family Law Reform Act, 1969 had been fully implemented in E&W by then so you were not a minor.

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bruncher
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Re: witnessing a signature: can anyone do it?

#126432

Postby bruncher » March 20th, 2018, 2:26 pm

Thanks JonE

Can you help with whether the signature needs to be witnessed by someone with no beneficial interest? To go to a different example - I assume a wife cannot witness the signature of her husband in the matter of his Will, and vice versa?

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Re: witnessing a signature: can anyone do it?

#126463

Postby didds » March 20th, 2018, 4:18 pm

wills and contracts witnessed by a subsequently deceased person must be extremely common I would have thought.

It would be impractical to expect everybody to keep their wlls and contracts resigned/rewitnessed in the event of a death of a m,witness. let alone I understand its not unusual for a witness to be "anybody" with no known way of staying in touch with, so how would you ever know your witness has died ?

didds

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Re: witnessing a signature: can anyone do it?

#126470

Postby JonE » March 20th, 2018, 4:49 pm

bruncher wrote:I assume a wife cannot witness the signature of her husband in the matter of his Will, and vice versa?


Each could witness the signature of the other - but in doing so becomes ineligible to benefit under the will. The will is not invalidated by this - it's just that a witness can't be a beneficiary. A minor can validly witness a will but that's probably a sub-optimal idea.

Wills are not necessarily a great example when considering commercial contracts (as you are doing).

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Re: witnessing a signature: can anyone do it?

#126490

Postby Lootman » March 20th, 2018, 5:36 pm

JonE wrote:
bruncher wrote:I assume a wife cannot witness the signature of her husband in the matter of his Will, and vice versa?

Each could witness the signature of the other - but in doing so becomes ineligible to benefit under the will. The will is not invalidated by this - it's just that a witness can't be a beneficiary.

That's my understanding as well. However I do wonder how often that actually happens. In many cases that witness and beneficiary will also be the executor and may either not know about that restriction or not act on it since it would be disadvantageous to do so.

So it seems to me that in practice the bequest may well be acted upon anyway unless another beneficiary notices and makes a challenge on the basis that they will then get more. Or if probate happens and the probate officer happens to notice it, which probably comes down to how detailed a look they take at every application.

dionaeamuscipula
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Re: witnessing a signature: can anyone do it?

#126661

Postby dionaeamuscipula » March 21st, 2018, 9:56 am

bruncher wrote:Can close family members witness a signature on a commercial contract? Is there a minimum age requirement of the witness?

I have been trawling a family archive and discovered that as a 19 year old I was a witness to my father's signature (that was in 1974, in case the law has changed) on a contract which is still operating.


IANAL.

My understanding is that contracts under English/Welsh law only need to be witnessed if they are being signed as a deed. For a deed the position I understood is as set out in the following:

https://www.gov.uk/government/publicati ... n-of-deeds

Of course that is existing law, not law in 1974. Even if that were not the law at the time, I would be most surprised if the courts were to determine that a 40 year old contract was invalid because of a minor witnessing issue, which was cured subsequently by a change in the law.

The law in Scotland is, I think, different.

DM

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Re: witnessing a signature: can anyone do it?

#126708

Postby Lootman » March 21st, 2018, 12:38 pm

dionaeamuscipula wrote:Of course that is existing law, not law in 1974. Even if that were not the law at the time, I would be most surprised if the courts were to determine that a 40 year old contract was invalid because of a minor witnessing issue, which was cured subsequently by a change in the law.

Yes, in the end witnessing is a technicality and should not invalidate an agreement (like a contract) or an instruction (like a Will) which otherwise is fair, reasonable and which the parties involved agreed with at the time. What is more important is the intent and the meeting of minds.

And there is a reasonable argument that if A and B behave for 40 years as if their contract is valid, then it is valid by custom, practice and precedent regardless of any technical issues with the original document.


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