A problem frequently arises in real estate transactions when people say they witness signatures, but they don’t.
In Ontario, there are only three legal documents which require witnesses:
1) Domestic Agreements,
2) Powers of Attorney, and
Other documents are still valid without a “witness”, but on the basis of “best practices”, there should be a witness to the signature. That’s the case with real estate transactions. Any enforceable agreement to convey real property must be in writing. That is set out in the Statute of Frauds. But, they actually do not require a witness.
Domestic agreements and powers of attorney can in fact serve as companion and supporting documents, even without a witness. A holograph Will, if completed properly is valid.
Here’s a quick scenario. Bob wants to sell his house, so he hires Jack, a realtor. An offer is faxed into Jack’s office. Bob is on vacation out of the country. Jack e-mails Bob, and Bob gives him the fax number where he is staying. Jack faxes it over, and discusses the offer with Bob by phone. Then, Bob faxes it back to Jack’s office.
It’s not witnessed! So, Jack decides to witness the document, and signs his own name just above the line where it says “witness”.
What’s wrong with this scenario?
Jack said he witnessed the document but he didn’t. That’s the problem!
Now, you can appreciate that Jack’s involvement was helpful. The correct and proper procedure would be to properly document Jack’s involvement.
So, what should Jack have done?
Jack should “authenticate” the document. He really can’t witness it, because he wasn’t there. He should strike out the word “witnessed” and insert ‘authenticated not witnessed”.
What’s the difference? A witness needs to be personally present, and see the person sign the document in front of them. They become a compellable witness in any legal proceedings. They would be expected to comment on several aspects concerning the signing of the document. They should be able to say that the person appeared to have capacity to sign. They knew they were signing a legal document. The person did not appear to be under the influence of alcohol, drugs, medication or fatigue. In all respects, they appeared to be knowledgeable and execute the document without duress or coercion from any other party.
Authentication is somewhat different. The person was not personally present, but can state with a reasonable degree of certainty that the signature is that of a specific individual. They know the signature. They have the signature on file. The signature compares favourably with the signature on file, or they “recognize” the signature. Banks will undertake this task regularly.
You will appreciate that just because the signature looks similar that there is no real guarantee. It’s just a best guess, but it’s a best guess by someone who has certain business records on file, or a certain professional (or otherwise competent) recognition of the signature.
There is obviously one further step. The signature could be “guaranteed”. This means that the authenticating party is absolutely certain, and offers a contractual invitation to a third party to rely upon the truth of the statement.
In the case of the Bank manager: “Authenticate” could lead to a tort liability, a “Guarantee” could lead to a contractual liability.
In Jack’s circumstances, he could raise his involvement and “certification” to the next level. He could state “authenticated and guaranteed”. That would be as close to actually witnessing as possible. But, you will appreciate that it still falls slightly short. He wasn’t physically present, so he truly cannot say anything about intoxification or other factors that might have been an impediment to Bob’s signing of the document.
In real life, all too often someone in Jack’s position will simply sign above the witness line. That’s risky!
Brian Madigan LL.B., Broker