In response to social distancing requirements, the NSW Attorney-General has introduced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 to permit the signing and witnessing of various documents remotely.
The Regulation applies to documents that until now were legally required to be signed by a person in the physical presence of one or more people (whether independent individuals, legal practitioners, justices of the peace, etc.). This includes documents such as:
- Wills;
- Powers of attorney and Enduring powers of attorney;
- Deeds or Agreements;
- Appointments of enduring guardian;
- Affidavits; and
- Statutory declarations.
The Regulation commenced on 22 April 2020 and will be effective for 6 months, unless revoked earlier by Parliament and states that a person witnessing the signing of a document by audio visual link must:
“(a) observe the person signing the document (the signatory) sign the document in real time, and
(b) attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and
(c) be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
(d) endorse the document, or the copy of the document, with a statement:
(i) specifying the method used to witness the signature of the signatory, and
(ii) that the document was witnessed in accordance with this Regulation.”
The witness can either sign a counterpart of the document, or the signatory can send an electronic copy to the witness to countersign as soon as is practicable.
Whilst the Regulation is a significant easing of the usual requirements for the witnessing of documents, great care should be taken to ensure that signatories and witnesses are correctly identified and that exact copy documents are signed by the parties.
This article was written by Michael Henley, Partner and Philip Davis, Special Counsel.
