Witnessing legal documents in NSW during COVID-19
Townsends Law’s Elizabeth Wang looks at how to meet the signing and witnessing requirements of special documents during the COVID-19 restrictions.
John and Mary reside in NSW. They wish to update their Wills to provide for their grandchildren and wish to appoint their daughter under an enduring power of attorney.
As these documents are required to be executed in the presence of one or more witnesses, John and Mary are concerned about how they will be able to meet these witnessing requirements due to the COVID-19 restrictions.
On 22 April 2020, the NSW government announced that new temporary regulations had been made under s.17 of the Electronic Transactions Act, to help reduce face-to-face contact during the COVID-19 pandemic, and that these regulations are to take immediate effect.
The purpose of the regulations is to:
(a) provide documents that require a witness to be witnessed by audio visual link; and
(b) provide tasks in relation to witnessing a document to be performed by audio visual link; and
(c) allow a NSW oath, declaration or an affidavit made under s.26 of the Oaths Act 1900 to be taken or made before an Australian legal practitioner not just a justice of the peace, notary public or an Australian Consular Officer; and
(d) expand the category of people who are authorised to witness a Commonwealth statutory declaration made under the Statutory Declarations Act 1959 (Cth).
The general requirement for witnessing and attesting to legal documents is that a witness must see a person signing the document in real time to confirm the signature on the document is legitimate.
Under the new regulations John, Mary and one or more witnesses (as required) may use video conferencing technology such as Skype, WhatsApp, FaceTime and Zoom instead of conducting face-to-face meetings in order for the witness to see the signing of and attest to legal documents such as a will, a power of attorney or an enduring power of attorney, a deed or agreement, an enduring guardianship appointment, an affidavit (including an annexure or exhibit to the affidavit) and a statutory declaration in real time.
If John, Mary and the witness wish to use video conferencing technology as a form of
audio visual link for the purpose of witnessing and attesting legal documents, then they must ensure that they adhere to the following requirements to ensure that they comply with the new regulations:
1. John and Mary by video conferencing technology may execute a legal document in real time;
2. John and Mary must ensure that their signature on the document can be witnessed in real time by the witness by video conferencing technology;
3. the witness by video conferencing technology is required to observe John and Mary signing the legal document in real time, and is also required to attest or confirm John and Mary’s signature on the document by signing the document, or a copy of the document to confirm they witnessed the signature. This could be done on a hardcopy that is scanned and sent to the witness or on an identical counterpart of the document the signatory signs; and
4. the traditional methods of signing and witnessing these documents (i.e. ensuring that documents are dated on the date that they are signed and not backdated) remain valid while the regulation is in force.
It is important to note that these new witnessing and attesting requirements do not extend to a signatory signing or executing a document electronically. NSW has announced that it will continue to consult with stakeholders about options for allowing certain documents to be signed and executed electronically.
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