In the days before the development of techniques to identify microscopic indentations or traces of lead on paper, the material used to write on a document could cause conceptual problems. The nature of the writing material used to affix a signature was raised in the case of Geary v Physic.¹ An objection was taken where a promissory note was signed using a pencil. At the trial, the Lord Chief Justice, Abbott CJ, thought the promissory note was sufficiently indorsed, and directed the members of the jury to find a verdict for the plaintiff. He also permitted the plaintiff to challenge this finding. The matter was subsequently argued before Abbott CJ, and Bayley and Holroyd JJ. In his judgment, the Lord Chief Justice pointed out: ‘There is no authority for saying that where the law requires a contract to be in writing, that writing must be in ink’.² This decision was made before the development of the forensic analysis of materials and the use of technology as a means of detecting changes to materials. Although it is now possible to detect the erasure of a manuscript signature if it were to be affixed using a pencil, the principle established by this decision remains sound. The rationale for this decision is the principle that a signature was affixed to the document with an intent that it should be acted upon. Hence the type of writing material used is irrelevant, providing it is not removed from the document. This decision may also be considered correct on the premise that the promissory note was only valid for a limited period of time, and the use of a pencil to sign the note may not have been considered relevant because there was no requirement to retain a permanent record of the note.³

In Bateman v Pennington,⁴ the testator died suddenly, and in his effects two testamentary papers were discovered. The first paper was written in ink, and the date and signature of the testator inserted in pencil, preceded with the words ‘in case of accident I sign this my will’, also in pencil. The second paper was not dated, but subscribed by the testator in ink. Witnesses subscribed neither paper. On appeal to the Judicial Committee of the Privy Council, Lord Brougham, providing judgment, reversed the court below. The words in pencil could be construed as deliberative, but taking into account all the circumstances of the case, it was determined that the testator intended to die testate, and the appellant was entitled to probate.

In Lucas v James,⁵ a series of remarks on a draft under-lease were written in pencil, including the words ‘I agree to these terms, subject to the above observations. W. M. James’. In this instance, the plaintiff sought specific performance, while the defendant denied an agreement had been reached, arguing in part that the comments made by him on the draft, being made in pencil, were not intended to be binding. Although the claim failed for other reasons, Sir James Wigram VC made the extrajudicial remark that these words, taken in conjunction with a previous comment made by the defendant on the same draft, would, on the face of it, bind him to the terms of the under-lease.⁶ The Vice-Chancellor considered that the remarks made in pencil demonstrated a willingness to be bound by the amended document. In this instance, the use of pencil on the document was deemed perfectly acceptable as evidence of the writer’s intent to agree the terms of the document.

Whether the nature of a document had been changed sufficiently as the result of alterations made in pencil was the subject of In the Goods of Adams⁷ and Co-operative Bank plc v Tipper.⁸ In Adams, the deceased executed a printed form will. Additions were made in pencil and ink. Some of the writing in pencil had been partly rubbed out, and some had been written over in ink. Lord Penzance concluded that the intention of the deceased was for the additions made in ink to supersede the writing in pencil, and the words in pencil were excluded from probate.

In Co-operative Bank plc v Tipper, Mr and Mrs Tipper entered into a personal guarantee with the bank, but it transpired that the document erroneously described the defendants personally as both the customer (i.e. the principal debtor) and the guarantor. The bank applied to the court to rectify the error after Mr and Mrs Tipper’s company went into liquidation. Mr and Mrs Tipper opposed the application of the bank on the basis that where a document is altered in a material way, it becomes void, and therefore unenforceable. In this instance, a person unknown working for the bank used a pencil to strike out the names of Mr and Mrs Tipper and add the name and address of the company. Cooke J concluded that the proper evidential inference to draw was that the alterations constituted a drafting amendment. The changes made in pencil were not intended to alter the substance of the document, but were meant to propose that the names be put in the correct place in the document. As a result, the use of pencil did not alter the content of the document because the use of a pencil constituted a series of suggestions to correct errors in the document.

In a case from Scotland, Jollie v Lennie,⁹ the testator wrote a purported will by hand in pencil on each side of a single sheet of A5 paper. The testator signed the will before a witness, who also signed. Both signatures were in pencil. The will was held to be effective.

The use of a lead pencil has also been the subject of a number of decisions in the United States of America, including bills of exchange,¹⁰ the Statute of Frauds,¹¹ wills¹² and deeds, as in the 1920 Missouri case of Kleine v Kleine,¹³ in which John Kleine granted his sister a lease on a portion of land, and he signed it with a lead pencil. It was held to be a valid instrument. Graves J indicated, at 610, what he thought of Kleine and his motive for using a lead pencil in this instance:

The judge went on, at 611, to observe that:

His comments illustrate the frustration felt by many lawyers resulting from the erroneous and endlessly inaccurate comments made by lay people in respect of legal issues.

However, it is the use of a lead pencil on a judicial document in 1823 that serves to illustrate the fallacy about the invalid use of lead pencil as a means of affixing a signature to a document, and also in relation to whether a document is open to attack. In the Columbia case of United States v Thompson,¹⁴ it was held that an indictment for assault and battery for violently beating a slave signed by a justice of the peace with a lead pencil did not contain a sufficient signature. The reason given by Cranch CJ was that ‘it is liable to be so easily obliterated’. This is a false conclusion based on an erroneous premise. The logic of the reasoning runs as follows: a material that can be erased was used to affix the signature to the document, ergo the signature is not valid because it is possible to erase the signature. It is correct that the material impressed onto paper by a lead pencil can be erased, but the possibility that the writing can be erased does not prevent the document from having been signed. In this instance, the document was signed with the manuscript signature of a justice of the peace. The evidence of the signature was clear for all to see, which meant the signature was sufficient. Had the signature been erased, then the integrity of the document would have been questioned, and, depending on the strength or weakness of the evidence tendered and tested before the court, a decision could be made as to the authenticity of the document, which in turn would enable the trier of fact to determine whether the document had been signed or not.

Lawyers often use this argument relating to documents in electronic and digital form. The argument runs like this: because it is possible to forge an email, facsimile transmission or electronic signature (any form of electronic signature), ergo the email, facsimile transmission or electronic signature should not be admitted because of the possibility of forgery. Astonishingly, this argument was successfully used in the German case of AG Bonn Urteil vom 25.10.2001 3 C 193/01 Beweiskraft von E-Mails, JurPC Web-Dok. 332/2002, where the claimant sued the defendant for a broker’s fee for acting as an intermediary for the sale of cigarettes. The claim was dismissed on the basis that there was no sufficient proof, because the emails submitted in evidence had no value as evidence, because it is generally known that emails can be easily altered or forged. This argument is also fallacious. Any paper document can be forged, such as a letter from a commercial entity or a government, and lawyers are required to sift through documentary evidence regularly to test the authenticity of documents. The forgery of evidence is hardly new, and if this argument were to be accepted by judges, which it seems to be in some cases, then by logical extension, any item of documentary evidence could be excluded because it was possible to forge it. If it is suggested that an item of evidence has been forged, the question should be raised before trial, so that the party relying on the evidence has the opportunity to adduce evidence to prove the document is genuine. Unsound arguments based on a flawed foundation have no place in a court.