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It is accepted practice that signatures to most legal documents of significance are witnessed by an independent person. There are statutory and non-statutory provisions setting out particular standards for certain legal documents.

This Practice Note deals specifically with the witnessing of certain documents in the conveyancing process.

Contracts for Sale

The Conveyancing Committee believes that as a matter of law a Contract for Sale does not actually require to be witnessed but in practice for the most part, the execution of Contracts for Sale by the parties is witnessed by the solicitors acting for the purchaser and the vendor. Occasionally one is witnessed by another independent person. This is good practice. If a solicitor is not physically present when a client signs a Contract for Sale the signature of their client whether the signature is “wet ink” or digital, may be acknowledged to the solicitor either in person or remotely and the solicitor may then witness the signature.  Remote acknowledgment can be by phone, or over a virtual meeting such as Teams, FaceTime, Zoom or similar. It is perfectly proper for a solicitor to apply their signature as witness to the execution of a Contract for Sale based on the acknowledgment of the signatory, provided that they know their client.  The solicitor may themselves apply their signature either in “wet ink” or by digital means.  A witness who is not a solicitor can follow the same procedure.  

Deeds (Conveyance, Assignment, Transfers and Charges)

The is governed by the Land and Conveyancing Law Reform Act 2009 and the Land Registry rules.

The wording of the 2009 Act requires that the execution of a deed is acknowledged “in the presence of a witness”. Therefore while a deed may already have been signed in the absence of a witness the execution of the deed must be acknowledged in the presence of a witness. Although it is a matter for statutory interpretation, the Committee is of the view that ‘presence’ here almost certainly means in the physical presence of the witness signatory and therefore such acknowledgement should not be effected remotely.  Solicitors involved in the execution of these documents should exercise all care reasonably practicable in accordance with (a) their letters of engagement, (b) their duty of care to their client, and  (c)  the requirements of the Residential Certificate of Title system, where relevant. Particular care is needed when a charge could involve putting a family home at risk.

Guarantees

Particular care should be taken in relation to Guarantees. A solicitor has a duty to understand fully the circumstances of the Guarantor and then to give appropriate legal advice, which ideally should be in writing. If these duties have already been attended to by the solicitor, and provided that the Guarantee is not being executed as a deed, the Committee takes the view that it would be acceptable for the solicitor to have the signature of a Guarantor acknowledged remotely. It follows that the failure to have those duties attended to before a Guarantee is signed or acknowledged has the potential to be inconsistent with a solicitor’s duty of care to the Guarantor. As in the case of charges particular care is needed when a guarantee could involve putting a family home at risk.

Names of Signatories and Witnesses

Purchasers’ solicitors should check that closing documentation is properly witnessed. If the signature of any party or witness or the address and occupation of the witness is handwritten and illegible it is advisable to get these details clarified immediately because they will be required for registration with Tailte Eireann and are more easily checked at the time. The best practice is to write the name of the signatory in block capitals underneath the signature and to do likewise if the address and occupation are illegible.

Attestation Clause

The law relating to the execution of deeds is governed by s64(2)(B)(i) the 2009 Act in accordance with which it is perfectly proper for a party to a deed to sign the deed in the presence of the witness or where the deed is already signed, acknowledge their signature in the presence of the witness. The best practice would be for the attestation part of the execution block in any deed to reflect the factual situation eg:

• as is most usual, where the party to the deed signs in the presence of the witness:

      “Signed by [signatory party name] in the presence of …..”; or

• where the signatory has already signed and acknowledges their signature:-

      “Signed by [signatory party name] who acknowledged their signature in the presence of……….”

This Practice Note was edited on 20 February 2024.