2013 - Deeds speak louder than words. Attesting time for deeds PDF

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2013 - Deeds speak louder than words. Attesting time for deeds...

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The Conveyancer and Property Lawyer 2013

Deeds speaker louder than words. Attesting time for deeds? Martin Dray* Subject: Real property Keywords: Attestation; Deeds; Execution; Formalities; Signatures Legislation: Law of Property Act 1925 (c.20) s.73 Law of Property (Miscellaneous Provisions) Act 1989 (c.34) s.1

*Conv. 298 Introduction The final thing found in a deed is the execution clause.1 What is more, it may be the last thing to which those concerned give any real thought. Yet, as explained below, such inattention may have grave repercussions. This article principally focuses on the execution of deeds by individuals, but many of the issues discussed apply equally, or at least have close parallels, in the case of execution by companies.

The issue Shortly stated, the overarching question is: what precisely does the law require when it calls for the signature of a party to an instrument to be attested by a witness if the instrument is to constitute a valid deed? This spawns the following questions: what exactly must the witness do? Must the attesting witness sign the document by way of confirmation of his or her involvement, or is merely observing the maker’s execution of the intended deed sufficient? Further, if the witness must sign in order to attest, is a particular form of attestation required? And within what temporal window must the witness’s signature be endorsed on the document? Allied to this: can any shortcomings in attestation be remedied after the event? If so, how? The issue is one of important practical bearing and relevance to all concerned with ensuring, verifying or challenging (as the case may be) the status of instruments as deeds. It impacts on both the procedures to be put in place in connection with the execution of deeds and also the problems faced by practitioners in the modern era when commercial pressures sometimes lead to the less-than-perfect implementation of set procedures. Clarity of and certainty in the law are eminently desirable. Yet, as will be seen, the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989) spectacularly fails to provide either. *Conv. 299

The common law It is helpful to start with a summary of the common law position before turning to consider the impact of statutory intervention in this field.

Common law: signing of deeds The common law did not require a deed to be signed; sealing (of a document written on paper or parchment) and delivery was sufficient. However, although signing by the maker of a deed was not legally necessary, it became the established and universal practice to consider signing as an essential part of the execution of a deed, such that in 1812 Mansfield C.J. remarked, "I cannot believe that any man of business now living has accepted or would accept a deed that was not signed".2 The commercial insistence on the signing of deeds was no doubt borne out of a belief that a signature assured authenticity. As relatively recently as 1954 Denning L.J.3 made the following statement (perhaps reflective of more honourable times, when fraud was less prevalent than it is today): "The virtue of a signature lies in the fact that no two persons write exactly alike, and so it carries on

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the face of it a guarantee that the person who signs has given his personal attention to the document." 4

Common law: witnessing of deeds Unsurprisingly, there being no legal requirement (aside from statute or the terms of instruments that prescribed a particular manner of execution) for the maker of a deed to sign it, the law did not demand that the execution of a deed be attested by any witness.5 Again though, the convention became for deeds to be witnessed.

Statute Statute: signing and witnessing of deeds Section 73 of the Law of Property Act 1925 ("LPA 1925") introduced a requirement that deeds executed by an individual had to be signed (or bear the maker’s mark) as well as sealed. However, as a general rule, witnessing and attestation of the maker’s signature remained voluntary following the LPA 1925, and was not of the essence of a deed, albeit that it constituted best practice. There were notable exceptions to this (e.g. registered land transfers, which had to be attested)6 but even after 1925 the law did not routinely insist on attestation. *Conv. 300

The LP(MP)A 1989: an overhaul of the law regarding deeds and their execution It has been a different story since July 31, 1990 when s.1 of the LP(MP)A 1989—legislation best known for its radical overhaul of the law regarding the making of contracts for the sale of land (s.2 )—fundamentally changed the legal framework concerning the making of deeds, particularly by individuals. To start with, the LP(MP)A 1989 jettisoned any restriction on the substances on which a deed may be written.7 Nowadays there is no imperative to use paper, although it remains standard. More significantly, the need for a seal in the case of a deed by an individual was abolished.8 However, these relaxations were counterbalanced by brand new conditions. The statute introduced a requirement regarding the content of a deed: to be a deed, an instrument must now make it clear on its face that it is intended to be a deed.9 That said, this is not a very onerous obligation, especially in an era where standard, computer-generated documentation is the norm. But the LP(MP)A 1989 went some way further. It imposed a requirement that a deed must be validly executed.10 Moreover, it provides that an instrument is validly executed as a deed by an individual if and only if it satisfies the conditions of s.1(3). From this stems a new requirement of attestation.

The LP(MP)A 1989: witnessing and attestation of deeds Section 1(3) has two principal limbs: signing and delivery. Nothing new there? Well, not quite: the devil lies in the detail. Attached to the need for signature is a stipulation that the signature must be witnessed—a first in relation to deeds generally.11 With effect from July 31, 1990 previous standard practice was elevated into a statutory formality, non-compliance with which results in the invalidity of an intended deed. The LP(MP)A 1989 frames the requirement for attestation in the following terms: "It is signed — (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and his presence and the presence of two witnesses who each attest the signature." 12 The requirement for attestation by a witness is now integral to the requirement for signature by the maker of the instrument; the validity of the signature depends on the presence of the attesting witness (or witnesses, as the case may be). *Conv. 301 13

The meaning of attestation

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But what does "attest" mean? Surprisingly, the LP(MP)A 1989 contains no definition. It appears that this was because the Law Commission14 had taken the view that: "‘Attestation’ involves more than simply witnessing the execution of the deed; it also includes the subscription of the witness’ signature following a statement (attestation clause) that the document was signed or executed in his presence." 15 Nonetheless, since a new legal requirement (even if not a major change in practice) concerning the execution and validity of deeds generally was being introduced, it would surely have been desirable for "attest" to have been defined in the LP(MP)A 1989, especially because: (a) the concept of attestation had not always had a fixed and universal meaning; (b) comparison with other legislation might suggest that what the Law Commission regarded as the position was not in fact necessarily embraced by a reference to attestation alone. A short definition would have removed room for debate and the doubt that lingers to this day.

One view … By way of review, "attest" had historically been taken by some judges as meaning no more than that the persons should "be present and see what passes, and shall, when required, bear witness to the facts",16 i.e. "to bear witness to a fact".17 Subscription (signing) was just the outward work of attestation.18 "Attest" simply implied that a witness should be present to testify that the party making the deed had done so voluntarily.19 In Wright v Wakeford 20 in 1812, Mansfield C.J. stated matters as follows: "The word ‘attest’, in its strict and proper sense, I apprehend, means only witnessing, or bearing witness to; and the principal object in requiring that an instrument should be executed in the presence of witnesses is, that they may see that the instrument is properly and fairly executed." 21 There are later dicta of Lord Penzance to like effect.22 Further, in 1949 Pearce J. stated, "[t]he normal meaning of ‘attesting’ is testifying or bearing witness to *Conv. 302 something".23 Moving closer to the present day, in 2005 in a case concerning a will the Court of Appeal remarked, "It is plainly correct that meaning over and above ‘signs …’ must be given to ‘attests’", citing with apparent approval the distinction that had been drawn back in 1844 by Dr Lushington in Hudson,24 between: (i) subscription, i.e. signing; and (ii) attestation, meaning something more than that.25 Blackstone spoke of the limited scope of attestation as such, describing it as follows: "The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses: though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed." 26 However, he went on to say: "‘Attestation’ in its primary meaning, as the dictionaries27 show, involves witnessing, and witnessing only, but when it is applied to documents the dictionaries show, and the authorities also, that it involves writing." 28 This accords with modern dictionary definitions. The current Oxford English Dictionary29 gives the first meaning of the verb "attest" as "to bear witness to, affirm the truth or genuineness of", adding only secondarily, "formally (a) by signature, (b) by oath".

… and another As suggested by Blackstone, it may be that, for some at least, the term "attestation" in legal circles acquired an expanded meaning and came to refer to the signing of a document by a person who has witnessed the execution of the same by its maker. In 1843 in Burdett v Spilsbury 30 Lord Campbell said: "What is the meaning of an attesting witness to a deed? Why it is a witness who has seen the deed executed, and who signs it as a witness." 31 The Lord Chancellor spoke likewise in the same case.32 However, the issue in Burdett concerned the

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form of attestation and whether a general memorandum was sufficient.33 The focus was not on the precise meaning of "attest", and the remarks must be read in that light. Nonetheless, a similar view was plainly held by Sir John Romilly M.R., who in 1865 in Wickham v The Marquess of Bath 34 remarked: *Conv. 303 "What is meant by attesting a will or deed? It means, as I understand it, that one or more persons are present at the time of the execution of the deed for that purpose, and that, in evidence thereof, they sign the attestation clause stating such execution." 35 Indeed, back in Wright 36 Mansfield C.J. himself had actually gone on to say: "[B]ut in the ordinary use of the word ‘attest’, as applied to the execution of deeds, it is understood to require that the witnesses should attest in writing; the principal end of which seems to be, to preserve evidence of the instruments being executed in the presence of the witnesses required." 37 Overall therefore, review of the authorities reveals a divergence of opinion; there was no uniform view as to precisely what "attest" entails. Although Hodson J. in Re Selby-Bigge 38 (on which case the Law Commission placed weight) considered "that the word ‘attest’ [was] wide enough to include the word ‘subscribe’"39 and stated that he was aware of no cases to the contrary,40 it seems tolerably clear that (despite being assisted by counsel for the Attorney General) he had not been referred to previous authority such as Hudson,41 in which a different line had been taken and a clear distinction drawn between "attest" and "subscribe". All in all, it is evident that, although some had undoubtedly so expressed themselves on occasions, past judges had neither used "the word ‘attestation’ as including writing"42 nor used "the words ‘attestation’ and ‘subscription’ as if they were synonymous"43 consistently.

A pointer to the answer? Moreover, there is arguably prior parliamentary recognition of a material difference between "attest" and "sign". As originally enacted, s.9 of the Wills Act 1837 (WA 1837) referred to the testator’s signature being witnessed by witnesses who "shall attest and shall subscribe the will". Unless "subscribe" is regarded as mere surplusage,44 the double stipulation strongly suggests that "attest" does not, without more, carry with it a requirement to sign. Section 9 of the WA 1837 was itself substituted in 198245 and notably recast in terms that each witness "attests and signs" (or acknowledges his or her signature). *Conv. 304 Again therefore, the twofold requirement may be regarded as of significance. It may be inferred that (just seven years before the LP(MP)A 1989) Parliament did not think it appropriate simply to specify "attest". Further, since the very purpose (and beneficial effect) of attestation is to limit the scope for disputes as to whether the document was signed by its purported maker and the circumstances in which it was so signed, and to give some, albeit not complete, protection to the other parties (who can have more confidence in the genuineness of the signature by reason of the attestation),46 it can be said that witnessing, rather than signing by the witness as a record of the same, is the essential ingredient for attestation. Incidentally, if it be said that "attest" must surely embrace the witness signing, for unless it does so the words "who attests the signature" in s.1(3)(a) of the LP(MP)A 1989 add nothing to the preceding "in the presence of a witness", a response is that to "attest" requires the witness not only to witness (namely, physically observe) but also to do so with the intention of attesting the maker’s signature or the relevant document.47

Drawing the strands together All in all, it is unfortunate that the drafter of the LP(MP)A 1989 did not spell out exactly what was meant (and what is required) by the use of the bare verb "attest". It would have been better if the statutory intention had been clarified. Given the lack of consistency in the authorities and the contrasting wording of the WA 1837, the want of definition leaves the statute beset by no little uncertainty. Nonetheless, it is considered that the view that will most likely hold sway in the twenty-first century is that "attest" is to be interpreted as obliging any witness not only to observe the maker’s signature

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(and, if necessary, testify thereto) but also to record such observance through the witness’s own signature on the document. This indeed is the approach of the Land Registry, who "look to see that a witness has signed the deed".48

Is a particular form of attestation required? Even if the preceding conclusion is adopted and the practice followed that an attesting witness must actually sign the instrument, this is not necessarily the end of the potential difficulties in practice. Danger lurks in other respects. One problem area may be the form such written attestation must take.

No? Section 9 of the WA 1837 (both as originally enacted and as substituted)49 expressly provides that "no form of attestation shall be necessary". The statutory focus there is clearly on substance, not form. *Conv. 305 Also, judicial observations in cases such as Burdett 50 indicate that the witness’s signature alone is enough and that the absence of a "memorandum saying that it is signed, sealed and delivered" in the witness’s presence is not fatal. Further, though the presence of a proper attestation clause generates a presumption of due execution, it might be thought that its absence should not of itself cast doubt on the validity of an instrument.

Maybe? By contrast, the LP(MP)A 1989 is conspicuously silent on the point. Consequently, lacking any equivalent provision, if "attest" embraces the witness signing the deed, it remains unclear whether any, and if so, what, form of attestation is required. Indeed, while there may be no prescribed attestation clause, nonetheless the very omission from the LP(MP)A 1989 of words akin to those in the WA 1837 (which make clear that the essence is due execution but with as little formality as possible added)51 could perhaps be said to point to a requirement for at least some type of attestation clause. After all, adding one’s signature following an attestation clause is exactly what the Law Commission had in mind.52 Further, the inclusion of such a clause squares with the view expressed by Sir John Romilly M.R. in Wickham.53

Confusion reigns On this score too, the want of a definition of "attest" in the LP(MP)A 1989 leaves matters bedevilled by uncertainty. There ought to be no difficulty in the registered land context where the use of prescribed forms is mandated along with the statutory forms of execution.54 But what of the position in other cases, particularly (but not limited to) home-drawn instruments, where those involved depart from the standard formula, "Signed as a deed by [individual] in the presence of [witness]"? What if, for instance, the words "in the presence of" (which mirror the language of the LP(MP)A 1989) are omitted? Will the remaining wording suffice to constitute an effective attestation clause, if one be required? Also, what if the witness’s name and address are not stated? In these scenarios it is not difficult to conceive that real issues may arise.

The stance of those wielding power For its part, the Land Registry advises that it checks that the witness’s signature "clearly records the witnessing of the signing of the deed by the individual concerned, and that the name and address of the witness appear in legible form on the deed (to allow the witness to be traced should any questions later arise concerning execution). *Conv. 306 " 55 However, whether the Land Registry’s approach elevates undoubted best practice into a de facto

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legal requirement is unclear. The Land Registry’s attitude if it should come across something less than the counsel of perfection (especially if there exists possible evidential uncertainty too) is uncertain. But there must be a risk that a person lodging a "deed" might run into difficulty with the custodian of the land register if all the expected, standard boxes cannot be ticked in the case of a particular document. The Land Registry goes on to say: "The general law does not require a particular attestation clause. It is sufficient if the clause makes clear that the signatures of the parties to the deed are intended to be by way of execution and that they were made in the presence of the witnesses." 56 This seems to come perilously close to an insistence that, while no particular form of attestation clause is required, nevertheless an attestation clause covering what the Land Registry appears to believe are "the basics" (i.e. stating at least that the maker signed in the presence of the witness) is required to appear on the face of the deed. If so, this is arguably raising the bar and setting compliance with the LP(MP)A 1989 —which merely demands that the maker sign in the presence of a witness who attests the signature—at a higher and more onerous level. Whether this is justifiable is doubtful. It should not be forgotten that Parliament decreed that a deed must "make … it clear on its face that it is intended to be a deed"57 but by contrast did not expressly go on to impose any similar stipulation as to form when it dealt with attestation by a witness.

The consequences of slips in attestation: any escape? Further and in any event, even where the drafting (i.e. form of the execution clause) is perfect, mistakes can and do happen in p...