Wet ink signatures are the standard mode of execution for various documents employed in trusts, wills and estates practice.  The practice utilizes various documents including written instruments, letters of direction, contracts, powers of attorney, deeds and wills.  These documents are often executed in the presence of witnesses; in some instances, the documents are mandated to be executed with witnesses in attendance to comply with statutory requirements. In the midst of a pandemic, travel and movement restrictions, and physical distancing mandates, the Electronic Communications and Transactions Act, 2006 of The Bahamas (the “ECT Act”) may provide a useful option for the execution of documents for use in The Bahamas.  While the ECT Act makes it possible to execute electronically some documents thereby, addressing certain challenges presented by the pandemic, the execution of other documents has been excluded from the scope of the ECT Act as indicated hereafter.  Nonetheless, the option to execute by using electronic or digital signatures does exist and may be a useful tool in the practice area.

In the trusts, wills and estates practice area there are two tiers of documents: the core or foundational documents which establish the relationship; and operational, or supplemental documents by which the relationship is managed.  The core documents include trust deeds, wills and testamentary instruments and enduring powers of attorney. The supplemental documents include letters of directions, written instruments, resolutions and contracts.  The first tier documents, which are also subject to additional execution requirements, have been excluded from the application of the ECT Act.  Specifically, the electronic execution of wills or testamentary instruments, trusts, enduring powers of attorney and other deeds are not permitted. Consequently, it is with the second tier documents where the ECT Act has utility.

The signature is an critical element in the execution of documents.  Although wet ink signatures are predominantly used, English common law has accepted various alternative representations as valid signatures.  Acceptable representations of a signature include a rubber stamp of a signature, the making of a distinguishing mark and making a cross. In accepting alternatives to a wet ink signature, the courts have established that whatever represents a party’s signature must be intended as a signature and to authenticate the document so signed.  The House of Lords in the case of Caton v Caton (1867) LR 2 HL 127, stated variously:

  • “The cases on this point … establish that the mere circumstances of the name of a party being written by himself in the body of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of ‘authenticating the instrument’ or ‘so as to govern the whole instrument’ … The name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature.” Per Lord Chelmsford; and
  • “… be so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument … It must govern every part of the instrument. It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect.  It follows that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum.” Per Lord Westbury.

The above statements of what constitutes a signature have resulted in the considered view that a party’s full name, last name, initials, a combination of letters and numbers inserted into a document as an intended signature and authentication would be accepted (see Mehta v J Pereira Fernandes S.A. [2006] EWHC 813 (Ch)).  More recently, in Golden Ocean Group Limited v Salgaocar Mining Industries PVT Ltd and another [2011] EWHC 56 (Comm) it was accepted that an electronically printed signature, voluntarily inserted into email communications was sufficient to establish a valid agreement.  These developments in the common law establish an environment where electronic, or digital, signatures may be more readily used and accepted and make it possible for platforms and services to facilitate the electronic execution of documents to be used.

Consistent with the principles established in common law, the ECT Act provides that:

  • “‘signed’ or ‘signature’ includes any symbol executed or adopted, or any methodology or procedure employed or adopted, by a person with the intention of authenticating a record, including electronic methods”; and
  • “‘electronic signature’ means any letters, characters, numbers, sound,  process or symbols in electronic form attached to, or logically associated with information that is used by a signatory to indicate his intention to be bound by the content of that information”.

Further, section 9 of the ECT Act provides:

“Where the law requires the signature of a person, that requirement is met in relation to an electronic communication if a method is used to identify that person and to indicate that the person intended to sign or otherwise adopt the information in the electronic communication.”

Section 9 also states that the electronic signature may be proven by showing that a process existed requiring a party to execute a symbol or security procedure to verify the party.

The provisions of the ECT Act create as well an environment where the use of electronic or digital signatures may be a viable option.  This is bolstered by language which incorporates platforms and services that tailor its offerings to electronic or digital execution.  The incorporation of terms like ‘characters’, ‘numbers’, ‘process or symbols’ suggests such platforms and services could be used by persons in taking advantage of the option.

In light of the above, where a person, or party, has adopted or established an electronic signature, or been assigned a distinct identifying code, symbol or mark, the use of such signature, code, symbol or mark should satisfy both the common law and statutory requirements to be accepted as a valid signature.  An intentional use of the form of signature adopted by the person in a document to demonstrate the approval of the content or purpose of such document also satisfies the above legal requirements.

In practice it would be possible to effect the valid execution of a written instrument; for example appointing an office holder, using electronic or digital signatures under Bahamian law.  The form of the signature may be “any letters, characters, numbers, sounds, process or symbols” which have either been adopted as that person’s signature or assigned to the person by the service or platform chosen.  The form of signature must however be clearly associated with the party to demonstrate, when used, the intention of that party to be bound by the document electronically or digitally executed.   Other examples where the use of electronic, digital, signatures may be useful include the execution of letters directing the undertaking of a particular action and instruction.

Even though the ECT Act cannot be applied to every document essential to trusts, wills and estates practice, it can assist in the execution of other necessary documents to progress the work of the practice area.  At a time when restrictions and difficulties in execution of documents prevail primarily due to the limited mobility or assemblage of individuals, the option to electronically execute may alleviate some concerns and problems and offer a useful tool in the right circumstances.

ABOUT THE AUTHOR
Sharmon Ingraham is a Senior Associate in the firm’s Private Client & Wealth Management Practice Group where her practice includes advice to trust companies on matters concerning trust administration and creation, estate administration, private client wealth management, wills, company law and international commercial contracts.

*Previously published in STEP Bahamas Supplement 2020, use the download button below to access the full publication.

The information contained in this article is provided for the general interest of our readers, but is not intended to constitute legal advice. Clients and the general public are encouraged to seek specific advice on matters of concern.
This article can in no way serve as a substitute in such cases.
Copyright ©2020 Higgs & Johnson. All rights reserved.

 

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