Clients often ask us whether a witness needs to sign an agreement? Is a witness signature required? What are the rules for a contract witness? There are often two spaces on agreements for a witness to sign in addition to the person signing the agreement (or representing the legal entity entering into the agreement). Is it a legal requirement that a witness sign? It becomes an even more important question especially when the agreement is being signed using electronic signatures because it is hard for a witness to witness someone else signing with an electronic signature. They are often not in the same physical place or each other’s physical presence.
The short answer is No – a witness does not need to sign
Only the two persons entering into the agreement (like an IT contract or SLA) need to sign it. But, there are some exceptions and things to consider. Most agreements do not need witnesses to sign them. Most agreements do not even need to be signed by the parties entering into the agreement. Most agreements do not even need to be in writing.
There are some exceptions
The agreement itself may require the parties to sign or for witnesses to sign. A prior agreement may require future agreements to be in writing, and signed by the contracting parties or witnesses. The law may require an agreement to be in writing or signed. The law may also specify who must sign and with what kind of signature (electronic or advanced electronic). Examples of these laws are:
- Wills Act 1953 for wills
- Alienation of Land Act 1981 for contracts for the sale of immovable property
- Bills of Exchange Act 1964 for bills of exchange
In each case you need to look at the specific laws to see what they require. For example, Deeds of Sale do not need to be signed by witnesses.
A witness signature for evidence
A witnesses signature can be useful for evidentiary purposes. If a party to the agreement later says they did not sign, the person who witnessed the party signing can be called to confirm it. The witness can confirm that the specific person signed and that that was the signature they made. If there are going to be witnesses:
- the contracting party must sign in the presence of the witness, and
- it must be possible to find the witness later.
For this reason, the name and contact details of the witnesses must appear on the agreement, in addition to their signature.
Better options than a witness signature
A witness is often of little value because they often do not sign, or cannot be traced. A better way to verify and prove the contracting party signed an agreement is to use:
Yet another reason to use electronic signatures. There are various ways we can help you with electronic signatures. For handwritten signatures, you can also use a forensic handwriting expert to prove the authenticity of a signature.