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Yuen v Wong

Tricia Hemans appeared in the First-tier Tribunal as it considered an important point on which there is no clear authority, concerning whether, for the purpose of creating a deed, it is possible to witness a signature remotely i.e. does the law require physical presence or is virtual presence enough? A modern problem which is likely to continue to arise as technology advances and modes of conducting business become ever more technological.

At the heart of the dispute was an allegedly forged transfer of property. The Tribunal was tasked with deciding whether one of the two, previously joint, owners of the property had signed a transfer into the single name of the current proprietor. It was held that the applicant did so sign. This gave rise to an interesting legal question as to the remote witnessing of deeds.

The Respondent's case was that the document was signed in Hong Kong while her London based solicitor observed via skype and several days later purported to attest to that witnessing by recording, on the document itself, that she observed the execution of the document.

The key legal issues which arose from this finding where twofold: whether the execution of the transfer was (1) witnessed and (2) attested, within the meaning of s.1(3) Law of Property (Miscellaneous Provisions) Act 1989.

On the presence question it was said that whether the words of s.1(3) "in the presence of a witness" were satisfied by video link, under the present law, permitted more than one conceivable answer.  As highlighted by the Law Commission (Law Com No. 386), the law in this area is uncertain. However, it was held that the Applicant had a realistic prospect of persuading a Court of Tribunal that physical presence was required.

In relation to attestation, it was held that following Wood v Commercial First Business Ltd (In Liquidation) [2019] EWHC 2205 (Ch), attestation does not need to be contemporaneous with execution of a deed. The Tribunal did not, however, express a view as to the permissible time gap, leaving the door open for arguments on this point in future cases.

This case was considered on the basis of whether the Applicant had realistic prospects of success. It did not decide the point. Thus, lay people and practitioners alike await binding authority on how s.1(3) should operate in a technological age where electronic/remote/virtual ‘presence’ is a possibility. No doubt this will not be the last word on the subject, as technology advances and the different modes of 'presence' are explored. Courts and Tribunals, in approaching this question, will need to balance policy considerations such as the risks associated with expanding historical understandings of presence on the one hand and convenience on the other.

A copy of the decision can be found here.


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