The Law Society of Singapore has today released a guidance note on the execution of deeds under Singapore law, shining much needed light further to developments on the topic.

In Singapore, certain documents must be executed as a deed, and these may be broadly classified into three (3) catagories: (1) where legislation expressly requires execution in that form; (2) where the absence of consideration means a key element of a simple contract is lacking; and (3) where common law principles or judicial precedent mandate that the document be executed as a deed.

The note clarifies the key requirements/positions under Singapore law in relation to the execution of a Singapore law deed.

Key Requirements. Valid execution requires that a deed be:

• intended by parties to be executed as such (i.e. a deed);
• in writing;
• signed;
• sealed – or at least that some act amounting to it took place – most commonly evidenced by the physical affixation of a red plain wafer sticker; and
• delivered, which refers not to physical transfer of the document but the legal concept of a party demonstrating an intention to be immediately and unconditionally bound by the terms.

Execution by Individuals customarily requires that the signature be witnessed. As a matter of best practice, the witness should not be a family member, in order to reduce the risk of challenges to the veracity of execution. While there is no strict requirement that the witness sign contemporaneously with the signatory (the critical factor being that the witness did in fact observe the act of execution), it is prudent for this to happen as soon as reasonably practicable thereafter, so as to avoid any doubt as to whether the witnessing occurred.

Execution by Singapore Companies may be done by affixing the common seal in accordance with constitutional documents. Regardless of whether it has one, a Singapore company may also execute in accordance with Section 41B(1) of the Companies Act 1967, which allows execution:

• by a director and a company secretary;
• by at least two (2) directors; or
• by having a director execute in the presence of a witness who attests the signature.

Execution by Foreign Companies requires that it be done in accordance with the laws of its jurisdiction of incorporation. That said, a foreign company (and Singapore companies) may, by way of deed, authorise any person as its agent or attorney to execute deeds on its behalf.

Attestation by Lawyers is not typically a legal requirement (it is for certain contracts, e.g. mortgages) though it may be required by certain counterparties (particularly, banks).

Electronic Signatures can be effective (save for certain documents, e.g. wills, declarations of trust and powers of attorney). That said, where a Singapore company intends to rely on Section 41B(1) (discussed above), to prevent any controversy, the use of electronic signatures in such execution should be limited to the first two situations.

Signing in Advance (i.e. the UK’s Mercury Case) has not been considered in a reported decision in Singapore. Until the approach is clarified by Singapore law or judges, one must consider whether to adopt the (painful) Mercury approach – which requires the full and final version of the deed and the signed signature page to be part of the same physical or electronic document at the time of execution.

If you have any questions or require any additional information, please contact our Jeremiah Huang*. Do not risk your transaction over execution!

*Disclosure: Jeremiah, who serves on the Corporate Practice Committee of the Law Society, contributed to the guide with the support of our Associate, Loh Yu Tong.