What is the Purpose of a Witness?
Just last year the rules were changed when it came to real estate contracts. Electronic signatures were allowed. Parties could “sign” digitally from their own computers and these deals were “legal”.
The problem is that the witness is often missing. There’s no one else present so no independent third party views or can verify the party’s signature. For a real estate contract, a witness is not a legal requirement, but was customary for decades, indeed centuries.
This new arrangement is facilitated by the Electronic Commerce Act. It should be noted that the use of the Act is “optional”, no one can be compelled to use it. It is available only if the participants agree.
Sadly, that leaves out an important partner in the process: the mortgage lender. Sometimes the rules are strict. They need a witness!
This means that the witness issue must be dealt with as a matter somewhere in their file.
What does a Witness actually do?
The witness will:
1) Identify the party,
2) Confirm competency, and
3) Confirm capacity.
Identification is the easy part. That can be handled by the time, date and location of the “ip address”.
However, there are two other issues: competency and capacity. For those, you need a real life person who can actually come to Court and testify:
“…this person appeared to be over 18, was mentally alert and appeared to sign the document willingly, was not subject to undue influence at the time from any other person and was not apparently under the influence of drugs or alcohol”.
Sorry, you can’t yet get that information from a computer. Maybe someday, but not now…
So, some mortgage lenders still require a “real live person” to be involved in the process at some stage.
It should also be noted that Wills and Powers of Attorney cannot be signed digitally, and that Powers of Attorney and Domestic Agreements both require witnesses.
Brian Madigan LL. B., Broker