As mentioned in our previous article, on 22 April 2020, the NSW Attorney General has announced the temporary introduction of the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulation) which allows video conferencing technologies, such as Skype, WhatsApp, FaceTime and Zoom to be used in witnessing of certain legal documents during the COVID-19 pandemic. These changes will make it easier for the residents of NSW to stay home and reduce physical interactions, while still completing important transactions.
What documents can be witnessed by video conference?
The new Regulation allows the following documents to be witnessed via video conferencing technologies:
1. Wills, Power of Attorneys and Appointment of Enduring Guardianship;
2. Statutory Declarations and Affidavits; and
3. Deed or Agreements.
What are the requirements to sign and witness documents now?
This new Regulation provides that all witnesses must adhere to the following requirements if they wish to witness legal documents over video conferencing technologies:
1. The NSW resident who is signing a legal document over video conferencing technologies, must enable the witness to be able to clearly see the person and their signing hand. Therefore, all video conferences must be in “real time”.
The witness will not be able to accept any pre-recorded videos of the resident signing the legal document as there is no proof that the signature is “true” and “proper”.
2. Once the witness has confirmed that the signature is “true” and “proper”, the witness will then have to sign their document or a copy of the document. The Regulations provide that the witness may either:
2.1 sign a counterpart of the document as soon as the witness has confirmed the signature is “true” and “proper”; or
2.2 the person who signed the documents may scan the original and send the signed copy electronically to the witness, who will then countersign the copy.
Please note: If the document being witnessed is a will, under section 6(1)(c) of the SuccessionAct 2006 the testator should also observe each witness signing the counterpart or copy document in real time.
3. The Witness must then write a statement explaining both the method that was used when signing the agreement and confirm that the agreement was witnessed in accordance with the Regulation.
4. All witnesses must take reasonable steps to ensure that the document that is being signed is the same as the document signed by the witness.
The list of people who are able to witness a Statutory Declaration has also been temporarily expanded in line with the federal legislation. These include but are not limited to Architect, Chiropractor, Dentist, Financial adviser or financial planner, Legal practitioner, Medical practitioner, Midwife, Migration agent, Nurse, Occupational therapist, Optometrist, Patent attorney, Pharmacist, Physiotherapist, Psychologist and Veterinary surgeon.
Also the witness does not have to be physically located within NSW
How long will this Regulation apply for?
At this stage, the Regulations are in place for 6 months from 22 April 2020, however it is subject to the governments discretion to extend this if the COVID-19 pandemic runs for a longer period.
Let us help you
If you have any questions in relation to how these temporary regulations may affect you, feel free to contact Peter Crittenden on pcrittenden@marsdens.net.au or by phoning 02 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
