There’s nothing like a good ol’ fashioned Pandemic to shake up the tired and dusty laws (which, are very important laws, I might add) of yesteryear. In particular, my favourite documents – your estate planning, and deceased estate administration documents.In the earlier months of the pandemic, many people wondered how to sign documents which have strict witnessing protocols embedded in legislation. Documents such as affidavits, statutory declarations, deeds, powers of attorney, wills and other associated court and tribunal documents. As became apparent, it is very difficult to meet the “in the presence of” requirement when we are restricted from being in the presence of particular people. Emergency legislation was pushed through many of the Australian jurisdictions, and we are temporarily permitted to meet these strict requirements using electronic signing and witnessing methods via audio visual connections. Western Australia, as a backhanded reward for keeping your transmission numbers low, no such legislation exists, and the usual signing and witnessing requirements are expected to be followed.Although electronic signing and witnessing is permitted for now, certain protocols must still be met, and extreme care should be taken by the parties signing the documents, and the people who are witnessing them.Both the Victorian Law Institute and the New South Wales Law Society caution that if estate planning or deceased estate documentation can be delayed, or done face to face (however modified), then those options should be prioritised over electronic signing and witnessing.

Essential Requirements

For the documents to be legally valid, and able to withstand the scrutiny of future challenges, unless the following requirements can be met, then electronic witnessing is not an option. You may either delay the signing of the document until the restrictions are lifted, or talk to your lawyer about alternative methods.

All of the parties must have a strong internet connection, and must be able to see and hear each other clearly, without lag, or disruptions to the connection;

All of the parties must have email;

If signing a document using the traditional method, the signatory must have a functioning printer and scanner;

The parties must be clearly identifiable (a person may be asked to confirm their identity further by the provision of photographic identification and an example of their signature (if appropriate).

The quality of the sound and picture must be good enough that mannerisms, facial expressions, and responses can be clearly seen and heard by all parties;

Depending on the nature of the matter, or the documents being signed, the witnesses must be satisfied that the person signing the document is under no duress or pressure, and meets the relevant capacity tests.

The parties must be capable of using electronic technology.

Which documents allow electronic signing and witnessing, and who can be the witness?

Whilst the signing and witnessing restrictions have temporarily been opened, allowing far greater flexibility of when and how your documents can be signed, there are still nuances hidden in the details which should be discussed with one of our knowlegable Wealth Management lawyers. Contact us today on 1800 333 143 to help you navigate through this changing landscape.

1. COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic), r 40, which was created under the powers in the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), s 4(l).
2. COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic), r 41.
3. Electronic Transactions Act 2000 (NSW) s 9.
4. Electronic Transactions Regulation 2017 (NSW), Schedule 1, Part 1, cl 2(2).
5. Electronic Transactions Regulation 2017 (NSW), Schedule 1, Part 1, cl 2(3).
6. COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic), r 35.
7. Powers of Attorney Act 2014 (Vic) s 35; and Medical Treatment Planning and Decisions Act 2016 (Vic) s 36.
8. Oaths and Affirmations Act 2018 (Vic), s 19.
9. Electronic Transactions Act 2000 (NSW) s 9.
10. Guardianship Act 1987 (NSW), section 5.
11. Powers of Attorney Act 2003 (NSW), section 19(2).
12. Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth), section 6(3)(a), to be read with the Electronic Transactions Act 1999 (Cth) s 10.
13. Oaths and Affirmations Act 2018 (Vic) s 49B.
14. Oaths and Affirmations Act 2018 (Vic), section 19.
15. Electronic Transactions Regulation 2017 (NSW), Schedule 1, Part 1, cl 2(2)
16. Oaths Act 1900 (NSW) s 27.