COVID-19: New regulations allow legal documents to be signed and witnessed electronically

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulations) came into effect on 22 April 2020. It provides clarity on how certain documents can be witnessed via audio visual link. The Regulations are designed to overcome many of the hurdles brought about by COVID-19. Amongst other matters, it removes the requirement for a witness to be physically present when witnessing the execution of certain documents.

 

The Regulations are the latest chapter in a series of reforms that were initially announced in late March as part of the NSW Government's response to COVID-19.

What documents can be witnessed by audio visual link?

The following documents can now be witnessed by audio visual link:

  • a Will
  • a Power of Attorney or an Enduring Power of Attorney
  • an Appointment of Enduring Guardianship
  • a Deed or Agreement
  • an Affidavit (including an annexure or exhibit to the affidavit)
  • a Statutory Declaration.
The Regulations do not limit video witnessing to the above documents and apply to any document that is required to be witnessed under an Act or another law.

What is audio visual link?

Audio visual link means any technology that enables continuous and contemporaneous audio and visual communication between persons at difference places. In practice, this includes video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.

How do I witness a document by audio visual link?

A person witnessing a signatory sign a document by audio visual link must:
  1. observe the person signing the document in real time – The witness must watch the signing as it happens, not after with a recording of the signing.
  2. attest or confirm the signature was witnessed by signing the document or a copy of the document as soon as practicable after witnessing – The witness can confirm a document by signing a counterpart of the document. Alternatively, the signatory can scan and send a copy of the signed document electronically and the witness countersigns the scanned document.
  3. endorse the document, or a copy of the document with a statement – The witness must endorse the document with a statement outlining the method used to witness the signatory's signature and that the document was witnessed in accordance with the Regulations.
For example, a signature block could include a statement that "the document was signed in counterpart and witnessed over audio visual link (Zoom) in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017".

How long will these Regulations last for?

The Regulations will last for 6 months after 22 April 2020. However, the NSW Parliament can extend the Regulations to a maximum of 12 months.

Traditional methods of signing and witnessing documents remain valid while the Regulations are in force.

How can we help you?

The effects of COVID-19 are not an obstacle to completing or instigating estate planning, estate administration and other private wealth legal services. We can assist you with progressing these matters through these unprecedented times.

We are here if you would like to discuss your estate planning options and any other concerns, so please feel free to contact one of the solicitors in our Private Clients group. Alternatively, you can email Terry McCabe, the Principal of the group, directly at terry.mccabe@mccabecurwood.com.au.  

Contributors

Ivan Chan Lawyer