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Is the amendment considered to be dated even if date is missing - Docusign


Jakyasar
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Hi

I have an interesting question/dilemma.

I was provided a plan amendment by another person. The amendment was sent to the client by DocuSign.

It has 2 pages, a resolution and an amendment.

Both pages were signed but only resolution was dated. Amendment's date is left blank.

As they were both sent by DocuSign to be executed, there is proof that all were executed on the same date. There is the summary too.

In your opinion, would the amendment be considered as signed on the same date as the resolution? Or, it will need to be re-executed and dated tomorrow?

If this was not DocuSign related, I would not accept it but because there is no evidence as to when signed.

I am curious on the legality.

Thank you

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For what purpose are you asking whether it would be treated as dated?

A document obviously is signed on the date that it is signed. So, if your question is simply whether the document would be considered to have been signed on the date that it was, in fact signed on (and there is clear evidence that it was, in fact, signed on that date), then of course the answer is yes. For example, if a judge is asked to determine on what date was this document signed, they are going to look at the clear digital trail and determine that it was signed on the date that it was actually signed on. 

If your question is whether the document would be considered "dated" when the "date" field was left blank (but there is extraneous evidence regarding the date of the signature), then that is a more complicated question. For example, a plan document might include a provision saying, "any purported amendment to this plan will be invalid unless it is in a signed and dated writing by an authorized representative of the plan sponsor". Then the question is whether this counts as a "signed and dated writing", when the date field was left blank, which might arguably be treated as an ambiguity subject to discretionary interpretation by the plan administrator. Or, a law might refer to documents that are "signed and dated", in which case the question is what counts as "dated" for purposes of that law (which might have a very different answer, because the person deciding is different). 

Another question is whether the document would be treated as effectively "signed" at all, given that the signature block (which includes the date field) was not entirely filled out. I suspect most people would say that a document is signed if it has a signature on it, even if there are blank fields in the signature block. But I can't say that no one has ever taken a contrary position, and that assumption would be overridden by a specific provision saying that a document will not be treated as signed unless the entire signature block is filled out. 

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Amendments states on the last line and before signature lines "in witness whereof, the parties have caused this Amendment to be executed on ____________________."

No date but signed by plan sponsor and trustee.

Clearly the DocuSign summary shows the date it was executed.

Strangely the resolution to adopt was signed and dated.

I think they will have to resign with proper dating.

I am curious though would the DocuSign documentation back-up have any legal standing on the date for signing.

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If a blank line calls for filling-in a date on which something became, becomes, or will become applicable and the writing does not otherwise state that date, one might worry about an incomplete expression.

But if a fill-in would be merely a recital of when something was signed (I’d ignore the nonsense about “executed”) and there is useful evidence of when it was signed, what incompleteness would a maker worry about?

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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I've been out of the business a very long time, so I must say I am surprised that docusign is "legal" for the execution of plan documents.  Shouldn't be, of course, but so be it if someone in authority has pronounced it so.  I'd add some substance.  Why does the "date" of this particular amendment matter?  I'm not saying it doesn't, but the person it matters to does (an individual participant claiming a right? the IRS, the DOL?).  For example, if it is important for IRS qualification purposes, then the question becomes exactly what documents does the IRS require to be signed and dated.  What does the IRS regulation, or whatever, that sets forth the IRS rule say?  Then, how does state law come into play here?  By resolution I take it you mean a corporate resolution, and then a document signed pursuant to that resolution.  Would IRS rules pre-empt state corporate law?  I think not, but I haven't looked at it.  Finally, if the effective date of the amendment is all that's important, as compared with a "signed" date, then what does the resolution say?  For example, maybe the resolution is adopted, clearly and documented properly under state corporate law, and that it says something like "the X amendment submitted to and included with the minutes of this meeting as Exhibit B is hereby adopted and and shall be effective as of the date of this meeting.  Then it should do it.  I've had situations in which that satisfied the IRS for qualification purposes.  Having said all that, I will say that in my long-ago experience in dealing with IRS agents who were reviewing my individually drawn plans for qualification purposes, their ideas about resolutions, signing and dating and other paper document issues were inconsistent and, I always felt, seat-of-the-pants.

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21 minutes ago, Roycal said:

I am surprised that docusign is "legal" for the execution of plan documents.  Shouldn't be, of course, but so be it if someone in authority has pronounced it so.

Can you expand on your reasoning as to why it shouldn't be legal for plan documents?

 

 

 

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