Recommend that your client obtain that advice, and make sure the limits on your retainer are clear. This requirement is a problem for some sole director companies. If your client still decides to proceed, confirm that advice in writing. At a minimum, you will need to follow rule 7.2-9. Your client’s answers will ensure that you give the proper legal advice and any appropriate warnings of risk. The legal information and commentary on this site is general only. and from this answer, which says: Because people signing legal documents often need legal advice. He explained that he knew he was signing a mortgage and needed no legal advice. Documents ordered through Cleardocs affect the user's legal rights and liabilities. 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. The form of execution needs to be supported by either a provision in the company's constitution or a resolution of the company's board. 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. To whom can you speak, or give access to your file? If a party is elderly or vulnerable, be careful about capacity and undue influence, 7. Consider having the client initial the stamped message to acknowledge that it was read and understood. The mortgage was an inter alia mortgage over two properties. Complaints Lawyer Discipline Public Hearings. Many people can be witnesses. Use the checklist and keep it in your file – your checkmark is evidence you dealt with an issue. As part of a settlement of a bond claim, a supplier to a building site signed a release of both past and future debts. However, a witness should: Be over 18 years of age; Be of sound mind; Not be under the influence of drugs; Not be a party to the document or have any financial interests in the document; and Have known you for at least one year OR have taken reasonable steps to verify your identity. The order did note that Justices Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch voted in favor of rejecting all ballots missing a witness signature, even those that were mailed before the court ruled. If the document is a trust deed, or an SMSF deed, then in addition to the above, the witness sho… There are some legal services that seem very simple and straightforward – after all, how hard can it be to witness a signature (or two)? The Benefits of Witnesses Though witnesses aren’t always a requirement for executing a legal document, they can help solidify and authenticate your contract by providing proof that the signatures are legitimate and consensual. Read this first. The U.S. 4th Court of Appeals has vacated a previous ruling requiring South Carolina voters to have a witness signature for mail-in ballots. This is particularly important if your client wants to transfer property as a gift. A witness signature is not required in any of the five all-mail voting states in the West. A company can execute a document in any way that it determines, including authorising a person to sign the document on the company's behalf. That rule provides that, when a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must: (a) urge the unrepresented person to obtain independent legal representation; (b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and. They should also be an adult. They don't need to verify who has executed the document. The difference, the majority said in the latter ruling, was that Rhode Island's public officials had no objection to eliminating the witness requirement. 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 it is a real property transaction, you will need to follow Appendix C, paragraphs 7 through 9 of the Code. Ultimately, who can be a witness of a signature can differ depending on the type of document and the relative legislative requirements. She refused independent legal advice, and the lawyer agreed to witness her signature. If that party is not your client, do not take their signature. Use your judgment. Remember to include any limits on the scope of your retainer. What legal authority does a lawyer under a power of attorney or a court-appointed committee have to obtain information? The spouses turned on the lawyer for failing to advise them that both were liable under the mortgage. The lawyer offered legal advice but the husband advised that none was needed. The latest court ruling says ballots will not need a witness signature for the General Election. 41 to 50), Attestation and Proof of Execution of Instruments, published by the Continuing Legal Education Society of BC. The requirements also differ between Australian jurisdictions, so the answers below give a general response which addresses those requirements. CHARLESTON, S.C. (WCSC/AP) - South Carolinians voting absentee by mail must now have their signatures on ballot return envelopes witnessed after the United States Fourth Circuit Court of Appeals Thursday issued an order reversing a lower court’s ruling. A transfer or mortgage to assist a child may adversely affect an existing estate plan, including the provisions of a will, or result in unintended family law property consequences. Lawyers caught in a conflict from the outset, or as the matter develops, may well face claims. When a signature is witnessed, as well as signing, it is sensible for the witness to write their name in block capitals and insert their home address. Stop. 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. Ensure your actions are consistent with the stamp’s message. The person must sign the document in front of you; use blue ink or black ink, … Pursuant to rule 3.4-1, a lawyer must not act or continue to act for a client where there is a conflict of interest except as permitted under the Code. There are different requirements for the execution of legal documents depending on who is signing the document: whether an individual or a company, and if a company, what its structure is. What are the rules surrounding execution and witnessing of legal documents? The witness should be a person who is present at the signing of the document. Consider using a second stamp that clearly states the very limited nature of the services the lawyer provided (for example, “officer certification only”). A lawyer acted for a long-time friend and his co-worker on the purchase of a house. So if you are about to witness a signature on a real property transfer form, mortgage or discharge, power of attorney, co-ownership agreement, release of judgment or CPL, or any other document with legal consequences, read on. If you simply witness a signature and give no legal advice, protect yourself, 9. COLUMBIA, S.C. — Absentee voting rules have changed once again in South Carolina. Electronic signatures: when are they effective? Court rules that witness signature required for mail-in absentee ballots Oct 6, 2020 Oct 6, 2020 Updated Oct 12, 2020; Buy Now. To assess their suitability for the user, legal accounting and financial advice must be obtained. 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. A lawyer acted for a joint tenant wanting to pay a mortgage registered against an elderly co-owner’s interest in the property, in exchange for the co-owner’s share. Image source: KARE 11 News, Minneapolis By Gary D. Robertson and Scott Bauer RALEIGH, N.C. (AP) — As the pandemic prompts a surge in voting by mail, voters in a handful of states, including the presidential battlegrounds of North Carolina and Wisconsin, are facing a requirement that already is tripping up thousands — the need … If the transaction might be questioned at some later date, your file will help give us any evidence we may need to defend you. 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. There are some legal services that seem very simple and straightforward – after all, how hard can it be to witness a signature (or two)? If the elderly or vulnerable party is your client, take appropriate care to satisfy yourself that they understand the nature and consequences of what they are signing. Know and meet your officer certification obligations. 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. It can help you ensure that powers of attorney, property transfers or other common ­transactions, including gifts, loans and guarantees among family members and acquaintances, represent the genuine independent wishes of your clients and can withstand challenges based on undue influence. Keep your notes and copies of any documents that you witnessed in a general file that you use just for that purpose. If an account is associated to your email, we will send you an email with a link to reset your password. As an adult child will be presumed to hold the property in trust for your client, that child has the onus of proving that a gift was intended. 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. They may want you to prepare a document or simply witness one (or more) signatures. Change of SMSF Trustee (death of a trustee), SMSF Borrowing through Limited Recourse Borrowing arrangements, FAQs to help you set up a Discretionary (Family) Trust, FALQs to help you with Standard Employment Contracts, Use of our service is subject to our Terms & Conditions, a director and the company secretary signing it; or. Caution your client about possible unintended consequences, and confirm it in writing, 4. 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? 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. When witnessing a signature, you must: ensure the person signs the document in front of you. 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 Insist that they receive independent legal advice as there may be issues of competency or undue influence. (c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client. You will also need to decide how long to keep your file, including your notes. We discuss this below. Generally, a witness must be a disinterested third party, including an attorney or a notary public. Know and meet your identification obligations, client identification and verification rules, 5. Before signing a document, you should know that your client understands, for instance, that: Digging into the reasons for the transaction, family dynamics and the characteristics of the parties involved may uncover critical information. The Law Society offers minimum file retention guidelines, noting that other factors may require a longer retention period. For instance, a beneficiary cannot witness a Will where they are inheriting assets.Witnesses must be 18 years old and of sound mind when witnessing a document’s execution. If you are dealing with more than one party, be very, very careful, 6. You also run the risk of the non-client shifting allegiances and “going public” about the meeting, unfettered by any confidentiality obligations. 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. For more detailed information, see the Land Title Practice Manual – Volume 1, Land Title Act: Part 5 (ss. 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). One of the children later alleged that the transaction documentation was not proper, and an anticipated tax exemption unavailable. The requirements for individuals in relation to signing legal documents vary slightly from State to State. When one daughter proceeded to use her interest for her own purposes, the client threatened to sue the lawyer for failing to advise him of the legal effects of joint tenancy. 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. Committees, Task Forces and Working Groups, Complaints Lawyer Discipline and Public Hearings, Public hearings schedules and discipline decisions, Practice Advisors Frequently Asked Questions, What You Need to Know if You Plan to Practise in BC, Custodianships: When Lawyers Can No Longer Run their Practice, Working With Lawyers and How the Justice System Works, Self-representation and Unbundled Services. Fraudsters are out there. As long as you took reasonable steps to confirm this independently – see tip 4 – you are safe. 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. Who Can Witness a Signature? In fact, he thought that he was simply guaranteeing the debt of friends, not putting his house at risk. giving a cottage to grandchildren means a potential loss of control ­during the grandparent’s lifetime and that the gift, once given, cannot be taken back. The other party will have much more difficulty challenging a transaction if they received independent legal advice. Ask questions to satisfy yourself that your client understands the document and its legal effect, 2. If you would like one, please email us at indemnity@lsbc.org and include your mailing address. Think carefully before you include a non-client in any client meeting. 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. At a minimum: Learn more about avoiding identity and other real estate frauds here. However, the other party to the contract still cannot rely on the assumptions in section 129 of the Act and so they may require some further step, such as providing a copy of a resolution of the sole director authorising the person to sign the document on the company's behalf. Make notes, and keep them. The material on this page is based on Witnessing a signature? NC absentee ballots must have witness signatures, judge rules By Danielle Battaglia ... Osteen ruled that the State Board of Elections cannot accept mail-in ballots without a witness signature … Appreciate that, even if your client’s signature isn’t required on a document, many of these tips will still be relevant. 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. This situation is rife with potential problems. Stop. You’ve likely had several people arrive at your office together, wanting you just to “help them paper” some agreement. Remember that you may be a witness some day in a dispute about the transaction, and you will likely have no independent memory of the matter. Be wary of any transaction involving an ­elderly or vulnerable person. A longstanding client dropped by his lawyer’s office to have his signature on a mortgage notarized. Because people signing legal documents often need legal advice. RALEIGH – Federal Judge William Osteen has ruled that absentee ballots MUST have a witness signature. Part 5 of the Land Title Act codifies a specific scheme of certification. Years later, after the friend lost mental capacity, his family asserted that the advance was a loan and not a gift, and asked the lawyer for his file and evidence to prove the same. Unfortunately – and as the examples given from Lawyers Indemnity Fund (LIF) claim files show – when matters later unravel, the lawyer may be targeted. A wife wanted to transfer her interest in recreational property to her husband, the lawyer’s client. The most frequent reports of claims and potential claims in this area arise from real property transactions involving family members. Why? 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. Of course, even if you are ethically able to act for all, the prudent course may still be to choose to act for just one. The common thread is that the lawyer believes that the person understands the document and wants to sign. So if you are about to witness a signature on a real property transfer form, mortgage or discharge, power of attorney, co-ownership agreement, release of judgment or CPL, or any other document with legal consequences, read on. A mentally incapacitated person cannot serve as a witness. A witnessed electronic signature is the replacement within a standard deed of a wet-ink signature with an electronic signature. To keep things simple, as a general rule a witness to the execution of a legal document should: 1. be 18 years old or older; 2. know the person whose signature they are witnessing; 3. be satisfied as to that person's identity; 4. not be a party to the document , that is, they should be signing the document only as a witness. A real property transfer may trigger unexpected income tax consequences, or an anticipated property transfer tax exemption may not apply. The BC Law Institute’s (BCLI) Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide has application beyond wills. A witness signature is not required in any of the five all-mail voting states in the West. Under Part 5, if you are certifying the execution of an instrument as an officer, you are certifying both the signature and identity of the signor. The lawyer witnessed the release, unaware that her client was continuing to supply materials to the site. SCOTUS Sides With S.C. To Reinstate Witness Signature Mandate For Absentee Ballots In explaining the court's decision, Justice Brett Kavanaugh wrote that … Keep safe. For instance, parents who lend money to an adult child and take a mortgage against that child’s property as security may need to know how time limitations could affect enforceability. A federal judge has ruled that North Carolina absentee ballots must include a witness signature. The witnesses will then be required to place their own signatures upon the contract signifying that they have observed the signing of the contract and that the witnesses believe that forgery did not take place. Sometimes, a signature brings unintended results. Witnesses cannot benefit from the contract in any way or be related to one of the parties. For instance, information received from one client may have prejudiced another, or one client may not have received advice about the potential negative effects of the transaction. In a subsequent builder’s lien claim, the owner/contractor raised the release as a defence. A lawyer witnessed signatures on transfers for an elderly client putting property titles into joint tenancy with two of her three children. Inclusion may erode privilege. For instance, a client may hope to avoid probate fees by adding a son as a joint tenant. Because people signing legal documents often need legal advice. And put both in writing. A lawyer acted for a client who put title to his properties in joint tenancy with his daughters to avoid probate fees. As different jurisdictions have different rules, always check the position before finalising the contract. It is not acceptable for them to provide you with a document that... not witness an electronic signature. A contract which may require witnesses include, but are not limited to, wills, deeds, mortgages and sometimes marriage contracts. Commonwealth and state and territory laws are not all that accommodating of electronic signatures. What is a Witness?A witness is a neutral third party who is present to watch signers execute a legal document. You may have acted entirely appropriately, including testing your client’s understanding of the transaction and checking for capacity and undue influence, but how will you prove that years down the road? Given the law in relation to resulting trusts as established by Pecore v. Pecore, 2007 SCC 17, that gift may fail without a deed of gift or some other papering of intention. The guide includes an excellent reference aid with a checklist, flow chart and list of red flags. The Lawyers Indemnity Fund has a limited supply of the reference aid in brochure form. For a helpful resource on issues of capacity, see BCLI’s Report on Common-law Tests of Capacity. Call a Law Society Practice Advisor for assistance in determining to whom you may give information. You may be the first person called if there’s a dispute later. When the co-owner refused to obtain legal advice, the lawyer agreed to meet with him at his assisted living facility and witness his signature. know the person whose signature they are witnessing; be satisfied as to that person's identity; not be a party to the document , that is, they should be signing the document only as a witness. 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. What are the rules for a contract witness? A sample letter is available on the Law Society’s website. Is the client still alive? To navigate these potentially troublesome waters, start by asking “Who is my client?” The answer to that question will help you determine your ethical duties, and how best to proceed. Unfortunately, these are potential minefields. Both the guide and reference aid are available here. © Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668, Immediate Grant Assistance for Not for Profits, Not for Profit Pty Ltd Company Registration, Discretionary Trust - deed of variation (excluding foreign persons), Discretionary Trust - excluded beneficiaries, Discretionary (Family) Trust Minutes & Resolutions, SMSF borrowing (bank) + register Corporate Trustee, Enduring Power of Attorney (Personal and/or Financial) VIC. Be alert to the possibility that your ­client may need advice that you will not be providing. And if you aren’t comfortable continuing, stop before you witness even your client’s signature. Ask more questions to determine if the document actually achieves what your client wants, 3. And if you intend to act for only one party but do more than witness another’s signature, the Code’s conflict and joint retainer requirements may be triggered (rule 7.2-9, commentary [1]). In general, any neutral party can be a witness to a document. Remember your ethical obligations regarding clients with diminished capacity (rule 3.2-9). As one lawyer advised us, “Better questioning at the start would have drawn out the additional detail I missed.”. The witness should be a person who is present at the signing of the document. Section 126(1) of the Act allows an individual acting with the express or implied authority of the company to make, vary, ratify or discharge a contract. If there is a mortgage on title, a transfer may trigger default. Even a mentally capable client may be vulnerable to undue influence by a relative, friend, caregiver, acquaintance, church member, accountant or other person. The friend advanced money to the co-worker for the purchase, but no agreement was prepared relating to the advance. A lawyer witnessed the signatures of spouses mortgaging their home to raise money for a property development project in which the husband was involved. Unfortunately, these are potential minefields. results in a loss of a portion of the principal residence tax exemption; mortgaging the family home to finance a loan to a daughter or a spouse’s interest in a business or investment, puts the entire property at risk of foreclosure; or. Remember that you may be a witness down the road: keep notes and relevant documents, and protect your client’s confidential and privileged information, 8. If it’s not your client, remember your duties in relation to confidentiality and privilege. You can read more about electronic signing of legal documents in our ClearLaw article "Electronic signatures: when are they effective?". The co-owner later alleged a lack of consent or understanding of the transfer. To keep things simple, as a general rule a witness to the execution of a legal document should: If the document is a trust deed, or an SMSF deed, then in addition to the above, the witness should not be a beneficiary of the trust or fund. 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. Keep in mind that some documents may require both witness and notary signatures, and that they should not be from the same person. Voters cast ballots at Grace Lutheran Church in 2018. If you conclude that it is appropriate to simply witness a signature, use of the stamp “no legal advice sought or given” provides evidence of the limits on your retainer. Clients often ask us whether a witness needs to sign an agreement? The economy turned, the development failed and the bank started foreclosure proceedings. A lawyer witnessed his borrower clients’ signatures to a mortgage prepared by the lender’s lawyer. The requirements for individuals in relation to signing legal documents vary slightly from State to State. Is a witness signature required? In his ruling Wednesday, U.S. District Judge William … You need to find out your client’s intentions, as the document may not achieve that goal. You are not guaranteeing identity. Separate from any liability exposure, a lawyer’s breach of the Code may also result in the Law Society taking disciplinary action. Voters struggling with witness rules in early voting A lack of a witness signature or other witness information has emerged as the leading cause of … Protect your client, and yourself. Remember as well your duties in relation to documents prepared by “Freemen” or “sovereign citizens.” For more information, see The Freeman-on-the-Land movement in the Winter 2012 Benchers’ Bulletin. What about the unrepresented party? A party to a deed cannot be a witness to another signature to that deed. The Democrats on the N.C. State Board of Elections, the Democrat Attorney General Josh Stein, and the Democrat attorney plaintiff that all winked and nodded their way to a lawsuit settlement effectively eliminating the witness requirement for absentee ballots […] If you are prepared to witness the unrepresented person’s signature, the suggestions in tip 8, adapted as needed, will help protect you. 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. Read this first., Insurance Issues: Risk Management, Winter, 2013. If the answer is “everyone,” you must ensure that you are not acting in a conflict. However, lawyers also report claims in relation to other transactions. Justice Brett Kavanaugh wrote a short concurring opinion to explain why he sided with South Carolina in reviving the witness requirement. Such a company cannot, therefore, execute documents in accordance with either section 127(1) or 127(2) of the Act. While some states like Minnesota have waived the witness requirement, others like North Carolina and Wisconsin still have it, and it's already tripping up thousands of early voters. Five key causes of claims and potential claims, Acting as an escrow agent stakeholder or trustee, 1. Including your notes and copies of any transaction involving an ­elderly or vulnerable, be careful in dealing a... Two of her three children or more ) signatures both were liable under mortgage! Ballots will not be from the outset, or give access to your file – your checkmark is you! The economy turned, the owner/contractor raised the release as a defence claims, as. 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