COVID-19: Signing Legal Documents through Video Witnessing

Introduction 

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 was published on 22nd April 2020. NSW is the first state of Australia to introduce witnessing of legal documents via “audiovisual link”. The regulation increased the number of persons before whom a statutory declaration may be signed.

Witnessing by the audiovisual link may not be appropriate for every circumstance or client but it is a welcomed measure to allow the important legal services to continue even during this pandemic, by maintaining social distancing and self-isolation.

Which documents can be witness by audio visual link?

The regulation allow the following documents to be witnessed by audiovisual link:

• A will
• Power of Attorney
• An Appointment of Enduring Guardian
• A deed or agreement
• An affidavit (including any annexure to it)
• A statutory declaration

The regulations do not alter face-to-face witnessing requirements for Superannuation Binding Death Benefit Nominations or any other documents that are subject to the laws of other states of Australia, commonwealth or other jurisdiction

How witnessing the audiovisual link is practiced?

The regulations must be carefully followed in order to create a valid document. A person witnessing the signing of a document using an audio visual link must:

• see the person signing the document in real time to confirm the signature is legitimate;
• Sign the document, or a copy of the document, as soon as practicable following the signing of the document by the signatory, to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signs which is electronically sent to the witness or on an identical counterpart of the document the signatory signs;
• be reasonably satisfied that the document signed by the witness is the same document, or a copy of the document, signed by the signatory
• State on the document the method of witnessing that was used (countersigned or counterpart) and that it was witnessed in accordance with the Regulations.

Increase in number of person before whom statutory declaration may be made

Earlier, Justice of Peace and Solicitors were the person that could act as a witness to a statutory declaration.

The regulations have been amended to allow other persons to witness a statutory declaration and which include:

• financial advisors
• nurses
• pharmacists
• psychologists
• veterinary surgeons
• accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants
• police officers
• teachers employed on a permanent basis

How long will this Regulation apply for?

At this stage, the Regulations are in place for 6 months from 22 April 2020, however it is subject to the governments’ discretion to extend this if the COVID-19 pandemic runs for a longer period.

Conclusion

Although these new measures are applauded and will be very useful for some clients, they have not yet been “tested” in the Courts and there is no doubt that there will be some issues to be mindful of.

Care will need to be taken to ensure that the Regulations are vigilantly complied with and the suitability to proceed with a client in line with these measures will need to be assessed on an individual basis.

In the event that video witnessing is not possible, there may be some other alternatives to consider depending on the circumstances or the document that needs to be signed. These should be discussed with your solicitor.

Nevertheless, if documents are executed using these temporary regulations, it is highly recommended that they be revisited once social distancing measures have been relaxed or once the pandemic is over with a view to re-signing the documents in the traditional face-to-face manner.