Unfortunately, these are potential minefields. As with any signature you witness, you must also satisfy yourself that the person appears to understand the contents of the document and to be acting of their own free will. Insist that they receive independent legal advice as there may be issues of competency or undue influence. Remember your ethical obligations regarding clients with diminished capacity (rule 3.2-9). The Law Society offers minimum file retention guidelines, noting that other factors may require a longer retention period. Five key causes of claims and potential claims, Acting as an escrow agent stakeholder or trustee, 1. If a party is elderly or vulnerable, be careful about capacity and undue influence, 7. BC Code section 3.4 deals with conflicts of interest between clients, specifically defined as: … the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. If appropriate, consider a letter setting out what legal advice is needed and that the person has declined and just wants you to witness their signature. Many people can be witnesses. This is the case unless it is absolutely clear by express wording on the face of the attestation that the witness is witnessing both or all signatures in the presence of the named signatories. The clients later said that they agreed to mortgage only one. A party to a deed cannot be a witness to another signature to that deed. Generally speaking, a witness must be: At least 18 years old ; Be acquainted with the person they are witnessing for; Be of sound mind and have capacity to witness A lawyer acted for a client who put title to his properties in joint tenancy with his daughters to avoid probate fees. The requirements for individuals in relation to signing legal documents vary slightly from State to State. And if you're the lawyer who is retained to provide independent legal advice (ILA), read our risk management tips designed specifically for the ILA lawyer. Because people signing legal documents often need legal advice. A federal judge has ruled that North Carolina absentee ballots must include a witness signature. At a minimum: Learn more about avoiding identity and other real estate frauds here. The mortgage was an inter alia mortgage over two properties. A lawyer witnessed signatures on transfers for an elderly client putting property titles into joint tenancy with two of her three children. You may be witnessing the signature of a fraudster. The witness should be a person who is present at the signing of the document. As long as you took reasonable steps to confirm this independently – see tip 4 – you are safe. This requirement is a problem for some sole director companies. The requirements also differ between Australian jurisdictions, so the answers below give a general response which addresses those requirements. In cases where witnessing a signature was a formal requirement it has been confirmed by the Law Commission that the witness must not only watch the signature in question being inscribed but must also be physically proximate to the signatory so that the signature takes place in a direct line of the sight of the witnesses. The co-owner later alleged a lack of consent or understanding of the transfer. Justice Brett Kavanaugh wrote a short concurring opinion to explain why he sided with South Carolina in reviving the witness requirement. The economy turned, the development failed and the bank started foreclosure proceedings. The other party will have much more difficulty challenging a transaction if they received independent legal advice. If you are ethically able – and choose – to act for everyone, remember the Code requires a joint retainer letter, even for members of the same family (rules 3.4-5 to 3.4-9). As one lawyer cautioned, “Be careful in dealing in a family transaction regardless of an apparently good relationship.”. Separate from any liability exposure, a lawyer’s breach of the Code may also result in the Law Society taking disciplinary action. Court rules that witness signature required for mail-in absentee ballots Oct 6, 2020 Oct 6, 2020 Updated Oct 12, 2020; Buy Now. In his ruling Wednesday, U.S. District Judge William … a power of attorney given so that a friend can help with banking might also allow that friend to sell or mortgage real property; adding a son as a joint tenant might help avoid probate fees but also: creates an interest that the son can mortgage without the parent’s consent, and is subject to claims if he becomes bankrupt or separates from his spouse; and. The Lawyers Indemnity Fund has a limited supply of the reference aid in brochure form. Part 5 of the Land Title Act codifies a specific scheme of certification. Help keep that evidence unassailable: If a stamp is unavailable, write the words yourself or make some contemporaneous note reflecting the limits of your retainer. The latest court ruling says ballots will not need a witness signature for the General Election. The difference, the majority said in the latter ruling, was that Rhode Island's public officials had no objection to eliminating the witness requirement. This is because those organisations can then rely on assumptions set out in section 129 of that Act that the document has been executed properly. Recommend that your client obtain that advice, and make sure the limits on your retainer are clear. Witnessing a signature? And remember that properly witnessing the execution of an instrument is also an ethical obligation under Appendix A of the Code. If the answer is “everyone,” you must ensure that you are not acting in a conflict. The wife’s personal representative later tried to set the transfer aside on the basis of undue influence and lack of capacity, and the husband alleged that the lawyer failed to protect his interests by not insisting that his wife receive separate representation. They may want you to prepare a document or simply witness one (or more) signatures. Keep safe. Documents ordered through Cleardocs affect the user's legal rights and liabilities. Stop. If an account is associated to your email, we will send you an email with a link to reset your password. As different jurisdictions have different rules, always check the position before finalising the contract. If your client still decides to proceed, confirm that advice in writing. The justices upheld Alabama's witness signature rule in a 5-4 vote along conservative-liberal lines in July, but it ruled 5-3 in August against a similar rule in Rhode Island. Your client’s answers will ensure that you give the proper legal advice and any appropriate warnings of risk. A lawyer witnessed his borrower clients’ signatures to a mortgage prepared by the lender’s lawyer. Unfortunately, these are potential minefields. Read this first. In general, any neutral party can be a witness to a document. Protect your client, and yourself. What are the rules surrounding execution and witnessing of legal documents? A lawyer witnessed the signatures of spouses mortgaging their home to raise money for a property development project in which the husband was involved. A witnessed electronic signature is the replacement within a standard deed of a wet-ink signature with an electronic signature. Be alert to the possibility that your client may need advice that you will not be providing. Complaints Lawyer Discipline Public Hearings. Even a mentally capable client may be vulnerable to undue influence by a relative, friend, caregiver, acquaintance, church member, accountant or other person. Ask more questions to determine if the document actually achieves what your client wants, 3. For a helpful resource on issues of capacity, see BCLI’s Report on Common-law Tests of Capacity. They should also be an adult. Both the guide and reference aid are available here. A witness signature is not required in any of the five all-mail voting states in the West. The common thread is that the lawyer believes that the person understands the document and wants to sign. At a minimum, you will need to follow rule 7.2-9. He explained that he knew he was signing a mortgage and needed no legal advice. We discuss this below. Fraudsters are out there. Keep in mind that some documents may require both witness and notary signatures, and that they should not be from the same person. A mentally incapacitated person cannot serve as a witness. Because people signing legal documents often need legal advice. Is the client still alive? Not all legal documents need to be witnessed, but if you have a legal document, such as a mortgage or other type of contract, a witnessing signature will provide evidentiary support in case there's a dispute about who signed. Recognize, however, that the only safe course may be to insist the other party receive independent legal advice and resist pressure to witness any signature other than your client’s. Why? If the client has died, is there a personal representative who has the authority of a grant of probate, or is there a dispute about the validity of the will? This will help protect you from a client who later tries to advance a position that is inconsistent with the stamp’s wording. There are some legal services that seem very simple and straightforward – after all, how hard can it be to witness a signature (or two)? However, lawyers also report claims in relation to other transactions. The legal information and commentary on this site is general only. A sample letter is available on the Law Society’s website. RALEIGH – Federal Judge William Osteen has ruled that absentee ballots MUST have a witness signature. There are some legal services that seem very simple and straightforward – after all, how hard can it be to witness a signature (or two)? A company can execute a document in compliance with sections 127(1) or (2) of the Act: by affixing the common seal to the document in the presence of the following persons who must also sign the document as evidence that they witnessed the affixing of the seal: None of the above options accommodate a sole director company that does not have a company secretary. If they refuse, explain to your client that proceeding in these circumstances may mean less ability to enforce their position in the face of a challenge. In fact, he thought that he was simply guaranteeing the debt of friends, not putting his house at risk. Remember to include any limits on the scope of your retainer. Specifically, you are certifying that the signature you witnessed on the document is the signature of the individual who appeared before you and acknowledged that he or she is the person named in the instrument as signor. Voters cast ballots at Grace Lutheran Church in 2018. 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