Electronic signatures – yes or no?

Law Commission says electronic signatures are officially valid – but not for everything

The debate over electronic signatures seems to be settled. A short statement issued by the Law Commission has confirmed that most legal documents signed electronically are lawful in England and Wales. But, not all legal documents are covered.

It is important that we have this clarification. It means that documents signed with electronic signatures can be admitted in evidence in court proceedings. There has always been a flexible attitude to some extent to what constitutes a signature. It can be a mark such as an ‘X’, a person’s initials, a name written in block capitals or similar. The courts were considereding wet signatures.

The Law Commission has concluded that electronic signatures should be accepted by the courts as a valid way to execute a document. That is provided that certain conditions are met by the persons signing the documents.

• the person signing must intend to authenticate the document
• any legal formalities for the signing the document must be complied with such as witnesses etc.

Wills, Lasting Powers of Attorney and land deeds

The Law Commission identified some very important exceptions to the use of electronic signatures. Wills and ‘registered dispositions’ – those are deeds to put into effect a transfer of land can’t be executed by electronic signatures. Lasting Powers of Attorney are another exception. All these types of documents must be signed with a ‘wet signature’ and each signature must be witnessed by someone who also signs with a wet signature.

The glaringly obvious concern about accepting electronic signatures is the potential for fraud. It’s very difficult from a forensic point of view to prove who ‘signed’ a document electronically. The debate about physical, so-called ‘wet signatures’ versus electronic signatures in relation to Wills and deeds is likely to go on for some time. Technology may well supply a solution in the future but for now, we are all still going to need a pen and paper.

Copyright in all the material in this Blog is held solely by Barker Evans Law Ltd. This material may only be accessed for personal study, and may not be reproduced or republished in any form without the author’s prior written permission.