What is a Witness Signature?
How do you legally define it?
What are the essential elements you should know!
In this article, we will break down the legal definition of Witness Signature so you know all there is to know about it!
Keep reading as we have gathered exactly the information that you need!
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Table of Contents
Witness Signature Overview
In some situations, legal documents (such as contracts and wills) must be signed in front of a third-party witness.
You may come across legal documents where there are two spaces for signature (one for the signing party and one for a witness).
Why is a witness signature required you ask?
The objective is to ensure that the signing party is protected as much as possible from fraud, misrepresentation, or risk of undue influence, coercion, or duress.
For example, when you are dealing with the signing of a will and testament, you may have many signing parties who are elderly and prone to fraud, manipulation, and deception.
To protect the vulnerable party making a will, the laws in many jurisdictions require that the will and testament be witnessed.
That provides a layer of protection to the testator as the witness can validate whether the person signing the will is actually the testator.
In addition to having the witness make a positive ID of the person signing, the witness may also be the person to be called upon in case there’s a legal dispute over the document that was signed in case someone else produces a second version of the contract.
When Is A Signature Required By A Witness
Most legal documents do not require a witness signature.
In fact, the large majority of contracts and legal documents only require the contracting parties or the authorized signatories to sign.
However, there are instances where a third-party witness may be asked to sign a document such as when the parties have contractually agreed to that or when the law imposes the witnessing requirement.
For example, the law may impose a “witness signature” when signing certain types of will, power of attorney, in cases of alienation of land further to a Deed of Sale, bill of exchange, formation of a trust, certain types of deeds, or other.
When the law imposes the requirement of a witness, it’s important to see whether it’s a simple witnessing of the document or are there specific requirements that must be observed such as the quality of the witness.
Who Is A Witness?
Typically, the witness is a neutral third party who “witnesses” or “observes” a person signing the document and confirms such factual observation by signing the document.
Different types of documents may require different types of witnesses.
For example, in jurisdictions where a witnessed will is possible, a witness can be someone who knows the testator for a certain period of time, it can be an attorney, notary, or a notary public.
There are instances where the law imposes that the person witnessing the document be a legal professional such as a lawyer or notary.
In many cases, a family member will not have the proper quality to act as a witness.
The reason that is the case is that the family member may not be a “neutral” third party and may have a direct or indirect interest in the legal document being signed.
To protect the signing party, the law will require a neutral third party to witness the legal document.
Who Can Witness A Signature
The notion of a witness can vary from one jurisdiction to another but in general, a witness is a person of legal age (over 18 in many places), is sound of mind, not a party to the contract or legal document being signed, and who knows you for a certain period of time or can confirm the identity of the person signing the document.
These are not clear-cut requirements for witnesses to sign a document.
You do have cases where the witnesses do not necessarily know all parties.
What’s important is that you observe the witness requirements of the document that you are effectively signing.
For example, if you are making a will and testament witnesses, the law will dictate the signature witnessing requirements.
If you fail to observe the specifics of the law, your will and testament may not produce the intended legal effects.
How Are Documents Witnessed
The witnessing of a document is fairly straightforward.
When the witness knows you for a period of time (typically over a year in many jurisdictions), then the witness can provide the witness signature by signing the “witness” signature block on the document.
In this scenario, the witness already knows you so was able to make a positive identification of your identity as a signing party.
The witness will be signing after you so they can effectively see you sign and factually acknowledge that they witnessed your signature.
If the witness does not know you, it’s important that they make a positive identification of who you are as the signing party.
If you are claiming to be John Doe or Mary Smith, the witness will ask for your most recent photographic identification cards.
Once a positive ID has been made, you will sign the legal document and the witness will then proceed to sign as a witness second.
Does The Witness Need To Be Physically Present
A question that is asked quite often is whether or not the witness must be physically present when the signing party signs the document.
Typically and in most jurisdictions, the law requires that the witness be physically present when he or she is observing the signing party execute the document.
In the post-COVID-19 environment where many are confined, the issue has been raised in many jurisdictions.
As of the writing of this article, we have found that the trend remains that witnesses will need to provide their signature in the physical presence of the signing party.
With the social distancing measures and the increase in video communications (doing remote business), it is likely that legislators will actively revisit the witness signature.
Where Does Witness Sign
Quite often and in most cases, the law does not dictate specifically where a witness should sign on a legal document.
What we can see is that the witness signature block is located on the same page as the signature block for the signing party.
The actual placement of the signature blocks is interesting as it follows a more “cultural” requirement.
For example, in European countries, it’s usual to see the witness signature block placed underneath the signing party’s signature block (stacked).
In the United States, it’s more common to see the witness signature line to be on the same line or aligned with the signing party’s signature block (side-by-side).
So, what does Witness Signature mean?
Let’s look at a summary of our findings.
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