Electronic signature and attestation in conveyancing practice: A Malaysian legal perspective

Abstract

Background The Corona Virus Disease 2019 (COVID-19) pandemic brought about an unprecedented disruption to global business activities. Physical face-to-face activities must be restricted due to movement control order (MCO). The clients are required to sign the documents physically in the presence of the solicitor who must subsequently attest to the signature of the clients. The issue arises whether electronic signature (e-signature) and attestation are permissible under the laws of Malaysia. The aim of this research was to study the legality of e-signature and attestation in conveyancing practice in Malaysia and subsequently to propose recommendations to overcome these issues. Methods This is qualitative study and not an empirical study. The data was collected by library-based research from various primary and secondary data sources, including case law in Malaysia, written statutes, publication of journal and article. Results The Digital Signatures Act 1997 (DSA) and the Electronic Commerce Act 2006 (ECA) have legalised e-signatures. The DSA is the law that governs the digital signatures in Malaysia. ECA has listed a few documents which are not legally accepted if signed electronically, namely Power of Attorney, the Wills and codicils, the Trusts, and negotiable instruments. However, with regards to the issue of attestation of these documents, there are no clear laws which govern the attestation. The legal issue arises when the lawyers who have attested these documents are liable to be called as witness under the Evidence Act 1950 to testify their signature if these documents are tendered as evidence in any court proceedings. Conclusion The laws in Malaysia have provided sufficient provisions for e-signatures but not the issue of attestation via online. Thus, it is suggested that there is a need for unique legal framework for attestation via online in Malaysia.