Pinel Advocates often advises on and arranges the execution of legal documents for its clients. One question that we are often asked is “Can I sign this document electronically?” Well, the answer is; it depends!
By Lisa-Marie Marc, Legal Assistant
The Electronic Communications (Amendment No. 2) (Jersey) Law 2022 came into force on 11 March 2022 to consolidate and simplify the rules around electronic signing, so let’s take a look at the current situation.
General Position
The law facilitating electronic signing in Jersey has been governed by the Electronic Communications (Jersey) Law since 2000 (the “Electronic Communications Law”). The Electronic Communications Law sets out the general principles around electronic communications, electronic signatures and certain requirements about the production and recording of information.
The Electronic Communications Law makes it clear that electronic signatures have legal effect, validity and enforceability. It also specifies that documents may be witnessed electronically if certain requirements are met. To be valid, electronic signatures shall be able to:
1. identify the person signing the document; and
2. indicate the person’s approval of the information communicated.
Therefore, it is generally acceptable for a document to be signed electronically as long as all parties involved are happy for such document to be signed via electronic means and nothing else prevents them from doing so.
However, unfortunately, the Electronic Communications Law is not the only source that needs to be considered when determining whether or not a certain document can be executed electronically.
Types of documents
We have set out below a guide to the execution requirements for certain types of documents that we often come across in our practice. As with all of our briefing notes, it is a guide to the process and not a substitute for specific advice:
Company Resolutions
Board minutes and shareholders’ resolutions are examples of ‘corporate authorisations’. The rules relating to their execution are primarily contained in the Companies (Jersey) Law, 1991, and a company’s Memorandum and Articles of Association (the “M&A”) which generally sets out whether documents can be signed electronically or not.
For example, it may contain the following wording:
“the word “signed” shall include a signature or representation of a signature affixed by mechanical, electronic, or other means.”
In this situation, from the signing company’s perspective, it would be acceptable for a corporate authorisation to be signed electronically. Even if the M&A stays silent on this point, it will usually be acceptable for documents to be signed electronically.
A company’s M&A or Shareholders’ Agreement (the “SHA”) may explicitly prohibit the electronic signing of certain documents, so it is important to review them before deciding whether to sign a document electronically or not.
Transaction Documents
Transaction Documents are agreements to be entered into between a company or an individual regarding a transaction, such as a business sale or taking a loan.
If an individual is party to a Transaction Document, it will generally be acceptable for that party to sign the Transaction Document electronically so long as the other parties agree and nothing else prevents them from doing so.
If a company is party to a Transaction Document, the company’s M&A and SHA (if any) must, again, be looked at to make sure that such Transaction Document can be signed electronically. The resolutions of the company approving the entry of that company into such Transaction Document should also be reviewed to make sure that they approve and authorise the Transaction Document to be signed electronically. The Transaction Document itself may also specify whether it can be executed electronically or not.
Property contracts
In Jersey, certain contracts relating to immovable property, including property leases for terms of more than 9 years and freehold sale contracts, are required to be passed before the Royal Court. Therefore, no electronic signing is possible in such situation.
However, leases for a term of fewer than 9 years and share transfer property contracts do not need to be passed before the Royal Court and therefore may generally be signed electronically following the rules set out above regarding Transaction Documents.
Trust Instruments
Although Trust Instruments are often referred to as “deeds”, it is important to note that the concept of a “deed” as known in England and Wales, which requires a certain type of signature and witnessing, does not exist in Jersey. Therefore, Trust Instruments may usually be executed electronically following the rules set out above regarding Transactional Documents provided the settlement or declaration of trust governing the trust does not prohibit electronic signing.
Wills
The execution of Wills in Jersey is governed by la Loi (1851) sur les testaments d’immeubles and the Wills and Successions (Jersey) Law 1993 (together, the “Wills Law”).
The Wills Law was temporarily updated during the pandemic when the States of Jersey enacted the Covid-19 (Signing of Instruments (Jersey) Regulations 2020 (the “Regulations”). These Regulations put in place a temporary regime allowing various probate documents including Wills to be executed remotely via video link.
The Regulations were put in place to allow people to execute Wills while in lockdown and to ensure that appropriate safeguards and practices continue whilst doing so. These include:
In all cases the relevant parties must be able to see and hear each other.
The individual making the oath, signature, or testament, must be positively identified by relevant persons, be that witness, testator, or Judicial Greffier.
The relevant persons, be that witness, testator or Judicial Greffier, must be able to see the signature being made.
The relevant persons, be that witness, testator or Judicial Greffier, must make themselves satisfied that the document being signed is in fact the document in question.
As relevant, the witness, testator or appointer, must provide a written declaration that the above has been carried out, usually within 14 days, to the Judicial Greffier, testator or their retained advocate or solicitor.
Where necessary, such as in the case of a will of immovable estate, documents must still be read aloud.
Documents, such as signed forms, must be filed with the relevant bodies, with some being time-restricted, for example providing the Judicial Greffier with documents 3 days before application for probate or letters of administration.
Therefore, a Will executed remotely via video link that complies with the Regulations above is valid.
However, the listed safeguards and practices do not mention the use of electronic signatures and indeed specify that the relevant persons must be able to see the signature being made, strongly implying the requirement of a wet-ink signature for valid execution.
Powers of Attorneys
Similarly to the execution of Wills, the execution of Powers of Attorney was affected by the Regulations allowing them to be witnessed via video link. Nevertheless, once again, the Power of Attorney (Jersey) Law 1995 stays silent regarding the use of electronic means to sign a Power of Attorney.
Which kind of electronic signatures can be used?
As mentioned above, electronic signatures are valid if they:
1. identify the person signing the document; and
2. indicate the person’s approval of the information communicated.
Therefore, a pdf of an individual’s signature affixed to a document is acceptable if it meets the requirements above. However, software such as DocuSign or Juro have been increasingly popular since they provide the signatories with an extra layer of confidence and protection whilst remaining easy to use.
What is new?
The Electronic Communications (Amendment No.2) (Jersey) Law 2022 (the “Amendment”) was adopted by the States of Jersey on 8 October 2021 and came into force on 11 March 2022.
The Amendment introduces more precision and certainty regarding the validity of electronic signatures and the requirements for witnessing documents.
Article 9A of the Amendment provides that a signature, seal, attestation or notarisation is not to be denied legal effect, validity or enforceability only because it is in electronic form.
Article 9B of the Amendment confirms that when a signature is required to be witnessed under an enactment, this can be satisfied via video link if it meets the necessary requirements. This provision, therefore, replaces the need to have in place the Regulations and to implement the type of ‘emergency measures’ put in place during the pandemic.
Moreover, the Covid-19 (Amendments – Extensions to September 2022) (Jersey) Regulations 2022 which came into force today, 1st of April 2022, just extended to the end of September 2022 most of the regulations made in connection with the pandemic, including the Regulations, extending the temporary regime regarding the execution of Wills and other probate documents to the 30th of September 2022.
Pinel Advocates can assist and advise on a broad range of matters, including the execution of documents. Please do not hesitate to contact David Yetman, Lisa-Marie Marc or Liberty Lees-Baker for assistance on the above.