The signature was genuine - so why wasn't the deed?

A recent High Court decision provides a useful reminder that signing a legal document is not always enough. If the document is a deed, getting the formalities wrong can have serious consequences.

The case concerned a sophisticated investment structure and a dispute about moving a limited partnership from England to the Cayman Islands. But the lesson is much wider and is particularly relevant to individuals, directors and owner-managed businesses: when a document needs to be executed as a deed, the signing formalities matter.

What happened?

In the recently reported case of 3Kings Holdings Limited v TCF 1 GP Limited [2026] EWHC 2620 (BP), a company became a limited partner in an English investment partnership.

The partnership agreement was intended to take effect as a deed and contained a power of attorney allowing the general partner to act on behalf of limited partners in certain circumstances.

The company's sole director signed the agreement. There was evidence that his signature had actually been witnessed. There was, however, a crucial problem: no witness had signed the agreement to attest the director's signature.

The High Court held that this meant the company had not validly executed the document as a deed.

That technical-looking defect had very significant consequences. Because a power of attorney must itself be granted by deed, the power of attorney contained in the agreement was ineffective. The general partner could not therefore rely upon it to bind the company to a replacement Cayman Islands partnership agreement.

A witness needs to do more than simply witness

This is perhaps the simplest reminder from the case.

Where a company executes a deed using a single director and a witness, the Companies Act 2006 requires the director to sign in the presence of a witness who attests the signature.

The court held that "attestation" requires the witness to sign the document as witness. Simply being there when somebody signs is not enough.

Equally, adding someone's name to a witness box should not be treated as an administrative formality. Execution requirements need to be complied with properly.

Electronic signatures have not removed the formalities

Electronic signing has made completing transactions faster and more convenient, but it can sometimes create a misleading sense that execution is simply a question of clicking the right boxes.

It isn't.

Different documents have different execution requirements. Where a deed requires a signature to be witnessed, the witnessing formalities still need to be followed.

Businesses should therefore resist informal approaches to witnessing deeds. In particular, a person should not sign an attestation as witness simply because they recognise the signatory's signature or have subsequently been told that the signatory signed the document.

If a deed requires a signature to be made in the presence of a witness, the execution process should be organised so that this actually happens and the witness can properly attest the signature.

Can't the parties simply agree that it is valid?

Not necessarily.

Another important feature of 3Kings was the court's refusal to allow equitable rules of estoppel to repair a document which, on its face, had not been properly executed as a deed.

The company had relied upon rights under the partnership agreement, and the court held that it was bound by the agreement itself. That was not enough, however, to turn it into a validly executed deed for the purpose of granting a power of attorney.

That distinction can matter enormously. A document might potentially remain effective as an ordinary contract while particular provisions which depend upon deed status do not work as intended.

Powers of attorney are an especially good example because the law specifically requires them to be granted by deed.

Follow the signing instructions

The judgment contains another useful lesson for businesses.

Even assuming that the power of attorney had been validly granted, the court decided that the general partner had not exercised it in accordance with its terms.

The document prescribed how the general partner could sign as attorney for the limited partners. That process had not been followed.

Execution clauses and signing instructions therefore should not be treated as just pointless formality. Before signing a deed or signing a document under a power of attorney, check:

• who needs to sign;
• in what capacity they are signing;
• whether a witness is required;
• whether the witness is actually present where the relevant execution method requires this;
• whether the witness has correctly completed and signed the attestation;
• whether the document needs to be executed as a deed; and
• whether anyone signing under a power of attorney is following the terms of that power.
  
  

Why does this matter to me?

This may have been a case involving an international investment fund, but the execution issues are everyday ones.

Businesses and individuals across the South West routinely enter into documents which are, or may need to be, deeds. Problems tend only to emerge later, often when relationships have broken down, money is at stake or somebody wants to enforce the document.

By that stage a missed signature or incorrectly witnessed deed can become considerably more than an administrative inconvenience.

The wider message from 3Kings is straightforward: execution is part of the legal substance of a transaction, not just the paperwork at the end of it.

Electronic signing can make transactions easier, but it makes it more, not less, important to know which formalities still apply. A few minutes spent getting the execution process right can avoid a much more difficult argument about whether an important document works at all.

If you need advice on ensuring your commercial agreements and legal documents are validly executed, contact our Corporate & Commercial team today to see how we can help protect your business.