UK government accepts electronic signatures are binding on most deeds except Wills, LPAs and Trusts
The government has officially accepted the Law Commission of England and Wales' (the Commission’s) opinion that electronic signatures on contracts and many deeds are already legally valid in England and Wales without the need for formal primary legislation.
A report from the Commission published in September 2019 confirmed its view that electronic signatures can lawfully be used to execute documents, including most deeds and other documents where there is a statutory requirement for a signature. The study found that e-signatures are valid if the person signing intends to do so and that any additional formalities required by statue, such as witnessing, are satisfied. In practice, the Commission noted, English and Welsh courts have accepted electronic forms of signatures in many test cases, including a name typed at the bottom of an email, or clicking an 'I accept' tick box on a website'. Certain deeds remain excepted, including wills.
This week, Lord Chancellor and Secretary of State for Justice Robert Buckland told parliament that the existing framework makes clear that businesses and individuals can feel confident in using e-signatures in commercial and consumer transactions and certain other fields of law.
However, he cautioned that a wider review of the law of deeds is needed: the Commission report noted there are particular issues with allowing e-signatures to be used on some instruments, such as wills, powers of attorney and transfers of land.
'I accept the Law Commission's recommendation that an Industry Working Group should be established, which the Government should convene', said Buckland. ‘The Government will ask the Law Commission to undertake this review, although the timing for the review will be subject to overall government and Law Commission priorities given the volume of law reform work which exists…As the report demonstrates, notwithstanding the position in law, there are issues on the security and technology of electronic signatures that require further consideration from suitably experienced experts', said Buckland. 'These include ensuring that reform does not have any adverse impact, particularly on vulnerable people.'
Lasting powers of attorney are expected to be an important focus of this review. The question of video witnessing of electronic signatures will also be examined; in particular, whether the phrase 'in presence of a witness' requires the physical presence of that witness, and not a remotely executed signature.