Electronic Notarisation
Since the Covid-19 pandemic, there has been an increasing demand for the use of electronic notarisation. Electronic notarisation is the process of having a notary verify and authenticate electronic signatures and digital documents. This is done through the use of video conferencing software, electronic signatures, and digital seals. At Saville Notaries, we provide electronic notarisation for eligible documents, using a Qualified e-Signature (QES) as well as a digital notarial seal. The QES is valid throughout Europe and in many other countries worldwide and is recognised under the European eIDAS regulation as having the same legal enforceability as a handwritten signature.
With regards to the execution of deeds, s1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 states that an instrument is validly executed as a deed by an individual (even if acting under a power of attorney) if it is signed in the presence of a witness. The Companies Act 2006 provides that in order for a company to validly execute a deed, a director should sign with another director, the company secretary or in the presence of a witness.
Where a deed is to be executed using an electronic signature, leading counsel in conjunction with a joint working party of the Law Society have stated that it is best practice for the witness to be physically present when the signatory signs electronically, as opposed to witnessing through a video conference call. This is to reduce any evidentiary risk as to the actual witnessing of the signing. HM Land Registry maintain this view that it would be unsafe to accept any other form of witnessing as being sufficient for the purposes of s1(3) of the Law of Property (Miscellaneous Provisions) Act 1989. These are in line with the Faculty Office Guidance on Remote Notarisation 2023 which explicitly states that any procedure followed must not “conflict with any requirement under the law of England and Wales that a deed or other document be executed in the physical presence of a witness.”
A deed is required for specific legal documents, such as:
- Land transfers,
- Most security documents
- Powers of attorney
Deeds are also commonly used for other documents, including:
- Shareholder agreements
- Share and business purchase agreements
- Loan documents
- Transfers of assets
- Guarantees
Electronic legalisation
Electronic legalisation of documents is obtained through the UK FCDO’s e-Apostille service. It’s a paper-free way of obtaining legalisation on electronically notarised documents in 24-48 hours.
What is an e-Apostille?
The electronic Apostille, also known as ‘e-Apostille’ is the electronic version of the paper-based apostille. It can be applied to PDF files that have been electronically signed with a QES by a UK notary and serves to legalise an electronic document. However, it first needs to be confirmed whether the document is eligible for the e-Apostille service and will be accepted by the overseas recipient. If not, the paper-based alternative, which also takes 24-48 hours, is required.
It is important to note that the e-Apostille can only be applied to electronically notarised documents. Both the notarised document and the e-Apostille exist solely in the digital realm and are only valid in digital form as they contain unique electronic signatures. Once printed, they are no longer valid.
Can all types of documents obtain an e-Apostille?
There are certain documents that cannot be e-Apostilled as the organisations that issue them do not currently allow electronic copies to be legalised and some physical features must be viewed in their original format, for example:
- Birth, death, marriage, civil partnership and adoption certificates, or any other document from the General Register Office
- ACRO police certificates for England and Wales
- Disclosure Barring Service (DBS) certificates for England and Wales
- Disclosure certificates for Scotland and Northern Ireland
- Fingerprint certificates
- Membership certificates for the Association of Chartered Certified Accountants (ACCA)
To legalise these documents, the paper-based service must be used instead.
What is the process of obtaining an e-Apostille?
- We notarise the document electronically using a QES in PDF format;
- We submit the electronically notarised PDF file to the FCDO for legalisation by e-Apostille;
- We receive the electronically legalised document, which contains a digital apostille. The completed document is then forwarded by email; paper copies are not available to send by courier.
Saville Notaries have dedicated electronic signing platforms and QES signatures to facilitate all electronic notarisation and legalisation needs smoothly and efficiently. Please contact notaries@savillenotaries.com for further details on how we can assist with your e-Notarisation and legalisation requirements. You can also check here Legalisation | Saville & Co | Scrivener Notaries in London for the legalisation requirements for each country.