Witnessing documents during COVID-19
28 September 2020 - Kristie Carlile (updated 8/9/21)
The remote witnessing of important legal documents over video conference will continue under new legislation to be introduced into NSW Parliament. The legislation will enable the remote witnessing of documents via AVL to continue until the end of 2021. Arrangements enabling remote witnessing would have otherwise terminated in September 2020.
Update: Section 146K of the Electronic Transactions Act 2000 (NSW) provides that these amendments will expire on 1 January 2022.
4 August 2020 - Julia Yassa & Peter Barakate
4 May 2020 - Julia Yassa
To address the issue of social distancing and hygiene during the current COVID-19 pandemic, the Government recently passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulation) which permits the witnessing of signing documents electronically, through the use of audio visual link (such as Zoom or Skype). The Regulation came into effect on 22 April 2020.
A document is defined by the Regulation to include:
(a) a will
(b) a power of attorney or an enduring power of attorney
(c) a deed or agreement
(d) an enduring guardianship appointment
(e) an affidavit, including an annexure or exhibit to the affidavit
(f) a statutory declaration
This list is not exhaustive – the signature of any document required under any Act or law to be witnessed may be witnessed by audio visual link.
To witness the signature of a document by audio visual link, the witness must:
observe the person signing in real time
attest/confirm that the signature was witnessed by signing the same document (such as by counter-signing a signed and scanned copy of the document) or a counterpart of the document
satisfy themselves that the document they have signed is the same as the document signed by the signatory
endorse the document signed (or a copy of the document) with a statement specifying that the document was witnessed using audio visual link in accordance with the Regulation.
You must ensure that you comply with all other usual execution, witnessing and due diligence requirements when witnessing documents by audio visual link, such as by asking the signatory questions to assess mental capacity in the case of a will or power of attorney.
Although it seems the Regulation is an answer to the age old question “can I witness someone’s signature on Skype?”, the Regulation is only temporary and will expire 6 months from 22 April 2020, unless the Government decides otherwise. Personally, we will be hoping they decide otherwise!