Witnessing of Legal Documents during COVID-19 Pandemic

In light of the COVID-19 pandemic, there have been a number of measures taken nationwide to ensure that documents such as Wills, Enduring Guardians, Powers of Attorney, Affidavits and Statutory Declarations are witnessed correctly. These measures give individuals the ability to have their documents witnessed remotely via audio visual link (“AVL”) to reduce the need for face-to-face interactions. The following outlines the current stance of each State/Territory in Australia.

New South Wales

On 22 April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 was introduced to allow for the signing of documents by audio visual link such as Zoom or Skype. This regulation will expire on 26 September 2020, unless extended by further regulation. Documents can still be witnessed in the traditional way while observing social distancing rules.

To witness the signing of a document by AVL, the witness must:

Be reasonably satisfied that the document being signed is the same as the document to be signed by the witness.
- If the document is relatively brief, a “page-turn” comparison could be conducted to ensure the documents are identical.
Observe the person signing the document in real time.
- The witness needs to see the face of the signatory, the signing hand of the signatory and the document simultaneously as the signing occurs.
Sign the document or a copy of the document as a witness.
- The witness may sign a counterpart of the document or the signatory may send a scanned copy of the signed document to the witness to sign.
- In relation to Wills, in order to meet the requirements stipulated under section 6(1)(c) of the Succession Act, the testator should observe each witness signing the counterpart or signed copy in real time.
Endorse the document, with a statement specifying the method used to witness the signing and that the document was witnessed in accordance with the Electronic Transactions Regulation 2017.
- An example could be: “This document was signed and witnessed over audio visual link in accordance with clause 2 of Schedule 1 of the Electronic Transactions Regulation 2017.”

Queensland

In Queensland, the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld) allows the signing of certain documents to be witnessed by audio-visual link, provided the witness is a “special witness”. These include Australian lawyers or a notary public. The regulation also allows for a substitute signatory to sign a will or an enduring document at the request of the signatory subject to strict requirements.

The QLD Regulation commenced on 15 May 2020 and is set to expire on 31 December 2020.

Victoria

Similar to NSW, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic) allows the signing of certain documents to be witnessed by audio-visual link. The regulation commenced on 12 May 2020 and will remain in force until they are revoked.

Further information regarding Victoria’s legislation can be found here: https://www.justice.vic.gov.au/electronicwitnessing

Australian Capital Territory

Section 4 of the COVID-19 Emergency Response Act 2020 (ACT) permits witnessing a signature of documents such as Affidavits, Will, Health Direction and a General/Enduring Power of Attorney by AVL. It contains a requirement for the witness to observe the signing in real-time and to endorse the document with a statement specifying the method of witnessing and that it was witnessed in accordance with the Act.

South Australia

In South Australia, the class of persons who may witness a statutory declaration has been extended to include persons such as police officers, full-time teachers, engineers, accountants with professional memberships and health practitioners. South Australia has not introduced any legislation allowing remote witnessing procedures.

The COVID-19 Emergency Response (Section 16) (No 1) Variation Regulations 2020 has suspended the requirement to witness the signing of an instrument under section 267 of the Real Property Act 1886 (SA).

Tasmania

In Tasmania, the COVID-19 Disease Emergency Notice made in pursuance of section 17(1) of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) permits remote witnessing by audio visual link of certain types of documents. This includes statutory declarations under section 14 of the Oaths Act 2001 (Tas).

Western Australia

There has not been any equivalent legislation enacted in Western Australia for witnessing legal documents such as Wills. The Law Society of WA maintains that the current legislation regarding informal Wills (Part X of the Wills Act 1970 (WA)) is sufficient and no emergency measures are needed.