The Bar Council Malaysia (“the Bar Council”) has by Circular No. 218/2022 dated 25 July 2022 and its FAQ dated 28 July 2022 laid down the guidelines on the Virtual or Remote Attestation or Witnessing of Execution of a Document by a Solicitor.
In attesting or witnessing the signing or execution of the document virtually or remotely, the Solicitor shall comply with any prevailing and applicable written law, or in the absence thereof, any conditions as may be determined by the Bar Council. In other words, the same conditions shall also be complied for the remote/virtual execution of documents to take place.
The Bar Council has provided a listing of documents which are SUITABLE and CANNOT BE witnessed remotely:-
|Documents Suitable for Remote Witnessing
- Sub-sale Sale and Purchase Agreement of real estate;
- Tenancy Agreement;
- Term Sheet, Letter of Offer, Letter of Intent;
- Sale and Purchase Agreement of shares;
- Joint Venture Agreement;
- Memorandum of Understanding;
- Heads of Agreement;
- Shareholders’ Agreement;
- Collaboration Agreement;
- Confidentiality or Non-Disclosure Agreement;
- Consultancy Agreement; and
- Construction Agreement
|Documents That Cannot Be Remotely Witnessed
- Sale and Purchase Agreement (“SPA”) prescribed by the Housing Development (Control and Licensing) Regulations 1989;
- Forms prescribed under the National Land Code 2020;
- Loan document templates prescribed by financial institutions that require physical presence as the witnessing requirement;
- Instruments of Powers of Attorney, under the Powers of Attorney Act 1949;
- Some forms prescribed under the Companies Act 2016; and
- Any other document or form that requires the physical presence of the signatory and the witness.
The Bar Council also has further laid down the conditions for remote/virtual witnessing:
- Any written law which required physical presence and all applicable laws which regulate how such documents are to be signed, witnessed or attested MUST BE COMPLIED with.
- The Solicitor must be satisfied that he/she has during the audio visual link :
- explicitly identified all signing parties and signing documents at the time of execution;
- maintained an uninterrupted and continuous sight of the signing parties and the documents throughout the signing;
- witnessed in real time the act of signing; and
- ensured the signing party’s signature, rubber stamp, and/ or seal, is affixed on the document identified.
- The entire signing must be recorded and saved by the Solicitor for minimum 3 years.
- The Solicitor shall send a confirmation to all signing parties to confirm that the document was signed remotely/virtually. Then, scan and send the signing document to the signing parties to have a sight of all signatures on that document.
- Wordings stating clearly that the said document was remotely witnessed and the method adopted shall be endorsed on the documents.
- Example: These conditions do not override any written law on the witnessing or execution of any document.
The Bar Council Circulars and guidelines does not represent the Bar Council’s warranty that the subject document will be immune from any legal scrutiny or challenge if being adopted by the members.
“A Member must exercise the highest possible standard of care and diligence, taking into consideration the facts and circumstances of each and every case that he/she is handling. A Member must also consider the type and nature of the document being signed or witnessed, and any specific legal requirements for the witnessing of the execution of the document.”
- Quoted from item 6.2 of the Bar Council Circular No. 222/2022 dated 28 July 2022.”
HEE SUE ANN
LL. B (Hons) Multimedia University
ASSOCIATE, REAL ESTATE
VICKY YAP WEI ZHEE