HOMEWhy does my lawyer have to witness my signature?
Anyone who comes to live, work, invest or study in Australia will eventually find themselves facing a documents which requires an ‘authorised witness’. At first glance this may seem like an unnecessary inconvenience but a lawyer’s signature is more than just a symbolic gesture. This special authority given to a solicitor provides certainty and stability to the Australian legal system. More importantly this takes a significant amount of risk away from you and puts that risk on your lawyer. At the same time it also provides you with safety and protection. Here’s why：
Why do important documents require a lawyer?
A lawyer does more than just witness your signature; they become your personal guarantor, not just for your identity but also for you sincere commitment to the words on the page. This is important because without a reliable witness it becomes very easy to forge documents. Someone could then pretend to be you and take away your house or much worse!
If the above sounds farfetched to you then let’s take a look at a real example which can be seen in the court case of Graham v Hall. In this case, a husband (Mr Hall) wanted to take a loan over his house so he could pay debts without his wife finding out. However, his wife’s name was on the house and so to get this loan he needed a lawyer to witness his wife’s signature. So Mr Hall signed for his wife without her knowing and went to a lawyer to witness the signature. At first the lawyer was reluctant but Mr Hall insisted and said a number of lies including a lie about how his wife had cancer and couldn’t leave her bed. Eventually the lawyer ‘witnessed’ the fake signature without talking to Mrs Hall.
Ultimately the husband lost the money and several years later the unfortunate wife was surprised with a huge amount of debt. This case is dreadful reminder of the importance of an authorised witness.
But why does it cost so much?
The above may have convinced you of the importance of a proper witness but why does it cost so much. Well when a lawyer witnesses your signature they take on a significant amount of risk. To explain this let’s finish the above story. After the wife discovered that her husband had used her signature to take money out of their house she sued the lawyer who ‘witnessed’ her signature. The court held that the lawyer had been negligent and failed to follow the high standards required of Australian lawyers. As a result the lawyer had to pay all the money that the wife lost back to her which was $136,480 Australian Dollars.
When I said above that a lawyer becomes your personal guarantor I meant it literally. But there is more to it than just protecting your identity. The lawyer also guarantees the validity of the contract in multiple ways and if the contract is improperly created then they have to pay for it. This means that if a lawyer doesn’t explain the document properly or if the document is improperly executed then they will be sued and they will pay the consequences.
Some examples
There are countless documents which require your lawyer to witness them including:
Mortgages
Affidavits
Statutory declarations
Consent orders
Power of attorney
Property transactions
Loans
Id and copy certification
There are also many documents which don’t require a lawyer’s signature, but it is strongly recommended that you get one to protect yourself from risk. This is especially true for wills which are frequently disputed in court because they are improperly drafted or signed.
AHL Legal
AHL Legal is the largest Chinese legal firm in Australia and has experience assisting throughout all jurisdictions in Australia. Please contact us if you have any Australian related business, personal or legal matter.
