Electronic witnessing of legal documents amid COVID-19

This week the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (the Regulation) became law under the Electronic Transactions Act 2000 (NSW) (the ETA).  The Regulation allows for, among other measures, the electronic witnessing of affidavits and deeds as a response to help 'stop the spread' of COVID-19. This is an extraordinary but important adjustment, as witnessing documents has always required the physical presence of both the witness and the deponent.

 

The new superimposing regulatory-making powers

In respect of the amendments to the ETA that ultimately enabled the making of the Regulation, the bill's second reading speech made clear that its purpose is designed to "create a regulation-making power that will allow for regulations to provide for alternative mechanisms for signing and witnessing documents in light of restrictions on interpersonal contact due to COVID-19".

Accordingly, the newly inserted section 17 of the ETA allows for regulations to be made under a "relevant Act" (defined to include the ETA, the Oaths Act 1900, the Guardianship Act 1987, the Succession Act 2006, the Powers of Attorney Act 2003, and the Conveyancing Act 1919) to provide for the following processes for the purposes of responding to COVID-19 crisis:

  1. altered arrangements for the signature of documents provided for by an Act or another law,
  2. altered arrangements for witnessing signatures, including requirements for certification of certain matters by witnesses and verification of identity, provided for by an Act or another law,
  3. altered arrangements for the attestation of documents.
Importantly, the Regulations are given superimposing authority as section 17(3) makes clear that regulations pursuant to the above matters "are not limited by the regulation-making power in a "relevant Act" " and "may override the provisions of any Act or other law".

A new way to witness – audio visual link

The entry of the emergency law makes clear that, for the purpose of (2) and (3) above (underlined), the documents that may be witnessed by audio visual link include deeds, Wills and other estate planning documents, affidavits (including the affidavit's annexure or exhibit) and statutory declarations.

The Regulation defines "audio visual link" to mean "technology that enables continuous and contemporaneous audio and visual communications between persons at different places, including video conferencing". Examples of reliable and popular video conference programs that may meet the criteria required by the emergency law include Skype, Zoom, FaceTime, WhatsApp and Microsoft Teams.

Ordinarily, witnessing legal documents require interpersonal contact, that is, physical presence of lawyers or other authorised individuals whilst the document is executed by the signatory or deposed by the deponent.  A principal purpose of witnessing a document in person is so that the deponent's signature is independently verified and is to remove any doubt over the authenticity of the signature.

Create the "live feel" when electronically witnessing documents

To achieve the "live feel" in witnessing legal documents, a witness must under the emergency law:
  1. observe the person sign the document in "real time";
  2. attest or otherwise confirm the signature was witnessed by signing the document or a copy;
  3. be reasonably satisfied that the document the signatory and witness signed were copies of the same document; and
  4. endorse the document, or a copy of the document, with a statement that specifies the method used and that the document was witnessed in accordance with the Regulation.
For the avoidance of any doubt, make sure you have a good internet connection to ensure that there is the required "continuous and contemporaneous audio and visual communication" between your witness and yourself.

Consequence of invalid witnessing

It is important to correctly witness a document, as the consequences can be severe. In some cases, a document that had been incorrectly witnessed may not serve its desired purpose or have no effect.

A temporary measure

It is currently intended for the emergency law to last 6 months, unless changed by Parliament. We will keep you informed of any changes made in this regard.

McCabe Curwood is here to assist you

Here at McCabe Curwood we are continuing to operate and service our clients as close to 'business as usual' as we can. We will ensure that your legal needs are continuingly met during these challenging times. We can help you witnessing documents as per the emergency law, but in the event that you do not have the technological capabilities, we can also arrange physical witnessing of documents.  In fact, "undertaking any legal obligation" is a reasonable excuse pursuant to Schedule 1 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020.

The emergency law is a timely but expected measure. It will certainly assist our clients, whether they are deposing a witness for the purpose of legal proceeding or executing a Will.

Stay tuned

What will shortly follow from this article is the publication of a comprehensive guide that will address 'all things electronic signatures and witnessing documents' of different legal documents.

In the meantime, you can read an article on the same subject matter, titled "COVID-19: New regulations allow legal documents to be signed and witnessed electronically" published by our Private Clients team.

Contributors

Gidon Kangisser Lawyer