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GAZETTE
SEPTEMBER 1981
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
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