You don’t really need to see the signature to witness it?
It can sometimes be annoying for clients when lawyers are so pedantic about witnessing a signature. Some may see it as a painful formality – a rubber stamp exercise required as part of the ‘bureaucracy of law’. Others may feel offended if we insist the signature be re-done in front of us or that you bring along proof of identify: “Don’t you trust me? But you have known me for years!”. Others may be surprised at the cost involved: “But it is just a signature!”
This perception may be held by many. But for lawyers that couldn’t be further from the truth. There are serious consequences for both the client and the community if documents are not witnessed correctly.
Safeguard the community from fraud and dishonesty
Our legal system aims to protect the rights of the community. Lawyers have an important role to ensure the community’s best interests are served and protected. When it comes to witnessing signatures on legal documents, the most important duty of the lawyer is to the legal system. Lawyers must protect the community from fraud and dishonesty.
Without this important safeguard, the community may live in fear that their assets or rights will be stolen away. For example, if we are not pedantic with land transfer documents, then dishonest people could transfer property without the true owner being aware of it.
The best way to minimise fraudulent activity and protect the community is for lawyers to be pedantic … every single time … no exceptions … no matter how well we know the client!
What if documents are not witnessed properly?
If documents are not witnessed properly, there can be delays in processing the transaction. There can be additional costs and worry to all concerned. If lawyers do not uphold the witnessing requirements, every single time, then confidence in our land title system may be undermined. Without this confidence, the values of property are at risk, financiers will be hesitant to loan money, and no one will be sure of the security of their property assets.
So, by being pedantic, and thorough, we are really doing you a favour!
New requirements for witnessing property documents
Last month, Queensland laws were amended introducing new requirements for witnessing property documents. The lawyer now needs to:
- take reasonable steps to verify the identity of the individual and ensure that the individual is entitled to sign the document;
- have the individual sign the document in their presence (i.e. not have the client sign beforehand and get their signature witnessed later!);
- and keep records and documentary evidence for 7 years of the steps taken to verify the identity of the signer and their authority to sign the document.
Verifying the identity of the individual
The most important step is verifying the identity of the individual. This usually involves a meeting where the identity documents are inspected for authenticity.
This process is not a simple ‘tick and flick’ exercise. We must carefully turn our mind to the identity documents and undertake further verification if necessary. For example, if a driver’s licence presented as proof of identity does not reasonably resemble the person, then the witness must take more steps to verify the identity. This may include sighting other forms of photo identification.
Once the identity of the person is established, the lawyer also needs to take steps to make sure the person is entitled to sign the document. For example, we will need to see evidence that includes the person’s name and clearly links that person to the transaction. This might include a property sales contract and a title search.
When the person signs the document in the physical presence of the witness, it must be done via ‘wet’ ink. Yes, in the age of electronic transactions, pens are still a vital tool!
This is why you can’t just ‘walk in’ to a lawyer’s office and have your signature witnessed. There is an important process to follow which protects both you, the community and the integrity of the entire land ownership legal framework.
Posted in: Conveyancing
November 15 2019