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Deed signature – witness and signatory

 A recent HC case considered the somewhat narrow point of the status of commission paid to a mortgage broker. What practitioners will find of wider interest from the judgment is the court’s view on the execution of a deed.
 
Section 1(3) LP (Miscellaneous Provisions) Act 1989 states that:
 
(3) An instrument is validly executed as a deed by an individual if, and only if – 
 
(a) it is signed –
 
(i) by him in the presence of a witness who attests the signature; or
 
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and
 
(b) it is delivered as a deed.
 
The HC had to consider whether a mortgage deed was validly executed where the witness had signed the deed after the signature by the executing parting and not in her presence. Unsurprisingly perhaps, the borrower sought to challenge the validity of two commercial mortgages on various grounds including that one had not been properly executed by the borrower as the signatures has not been made at the same time and the witness had not signed in the borrower’s presence. It was not in dispute that the borrower had signed in the presence of the witness.
 
The HC held that the borrower failed on this particular point. Section 1(3) requires the person executing the deed to sign in the presence of a witness but there is no requirement for the witness to sign in the presence of the executing party.
 
The decision is unlikely to change practitioners’ often painstaking instructions to clients as to how to sign and witness a deed. But the decision may offer some comfort in the event that the signatory and the witness fail to follow such instructions. See Wood v Commercial First [2019] EWHC 2205 (Ch) reported in Practical Law (subscription service).
 

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