Witnessing documents during COVID-19

A hotline has been set up for clients to contact us and talk through the challenges you may be facing. If you are in a financial bind, we will provide some initial guidance in relation to credit & finance, supply chain, insurance, restructuring, real estate and construction related matters so together we can work out what your best options are. The number is (02) 8281 7980. You can also visit our online COVID-19 resource page.

 

28 September 2020 - Kristie Carlile

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. 

 

4 August 2020 - Julia Yassa & Peter Barakate

COVID-19 and the electronic age

 

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:

  1. observe the person signing in real time

  2. 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

  3. satisfy themselves that the document they have signed is the same as the document signed by the signatory

  4. 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!