The Gazette 1981

SEPTEMBER 1981

GAZETTE

to appreciate the distinction between mere witnessing, on the one hand, and attestation, on the other. This distinction has been the subject of a long and venerable line of cases, stretching back to at least 1842. In that year, the leading case of Freshfield & Ors v. Reed <& Ors, 1 laid down the broad guidelines of what was required by way of execution where such execution was specifically required to be attested. In that case, the Court considered the execution of a document by Elizabeth Susanna Watson, whose consent and approbation in writing, duly attested, was required to certain demises of property effected by one Thomas Watson. In the events which happened, Elizabeth Susanna Watson was a party to such a demise, but it was argued that the fact that she was a party to the deed in question was not sufficient to sustain an allegation that she gave her consent in writing and that that was duly attested. Against this, it was argued that the wording of the power in question did not require that the consent should be attested by witnesses, but that any attestation in writing was sufficient; that the word "attested" had the same meaning as "testified"; and that the parties to the Lease might be considered as so many witnesses to her consent. The Court clearly took the view that attestation was something very different from mere witnessing and held that the term "attest" manifestly implied that a witness should be present, to attest that the party who was to execute the deed had done the act required by the power — the object of which (in the present case) was that some person should verify that Elizabeth Susanna Watson had voluntarily given her consent and approbation to the demise in question. Almost forty years and probably as many cases later, Lord Selvorne, L.C., handed down what has become the leading judgment on the subject, in the 1881 case of Seal v. Claridge. 2 The case concerned the execution of a Bill of Sale which, like a Will, is a document whose execution is regulated by statute and which is required, for its validity, inter alia to be "attested by a Solicitor of the Supreme Court". At the initial hearing in the lower Court, Huddleston, B., held that the attestation of the Bill of Sale was insufficient. The underlying circumstances were that the Plaintiff, a solicitor, was the grantee of a Bill of Sale granted by one Johnson. The Bill of Sale was attested by the Plaintiff. The Court of Appeal confined argument to the matter of execution of the Bill. It was argued for the appellant Plaintiff that the fact that the Bill had been attested by a solicitor was sufficient to give it validity; that a Bill of Sale may be valid without any attestation ( Davis v. Goodman)); and that the mere omission by the solicitor properly to perform his duty would not annul the transaction (Exparte National Mercantile Bank; in re Haynes,*). It was argued, contra, inter alia, that the party to a deed could not be a witness to it and Counsel for the defendant cited Coles v. Trecothick , 5 and Fresbfieid v. Reed. Lord Selborne, L.C., dealt summarily and dismissively with an aspect of the appellant's argument, upon certain facts not here described. The question of attestation, however, he found to be "of more general interest. I was at first surprised that no authority could be found directly in point; but no doubt the common sense of mankind has always rejected the notion that a party to a deed could also attest it." 2 1 9

Witnessing and Attestation

by Charles R. M. Meredith, Solicitor

T HERE can hardly be a day in the working life of the average solicitor without at least one document requiring to be signed by a party to it, in the presence of a witness. Equally, there can hardly be a day in the working life of the average solicitor when he (or she) actually questions what is involved in such witnessing, or why! The witnessing of documents is something which is so much taken for granted that the profession has largely ceased to concern itself with anything beyond the immediate and obvious practicalities. That the presence of a witness and the addition of that witness's signature to the document concerned are intended as some better proof of the execution of the document is self-evident, but the fact that relatively few documents ever require to have their due execution proved has resulted in the atrophy of our general knowledge at just about the primary level of awareness. Wills are, of course, a special case. The Succession Act, 1965, as successor to the Wills Act, 1837, is quite specific as to the manner of execution and attestation of wills and such execution and attestation must be "proved" as part of the probate procedure. Similarly must documents requiring registration in the Registry of Deeds be properly attested, in accordance with the Statute 6 Anne, c.2. Other documents, too, are statutorily controlled as to execution and attestation. But what of the great mass of documentation with which the practitioner is daily concerned — leases and letting agreements; simply contracts in a variety of fields; waivers under the Succession Act and a host of other common examples? Which of them actually requires to be witnessed or attested and, of those that do so require, how should such witnessing or attestation be effected? This raises the further interesting question, can a party to a document witness the signature of another party to that document? The answer to which is, as one might expect, yes and no! To appreciate the underlying principles, it is necessary