NSW document witnessing requirements under Covid-19

Contact: Michael James

From 22 April 2020, witnessing of certain documents in the NSW can be made through video conferencing …

Documents that can be witnessed through video conferencing

Only documents governed by NSW law can be witnessed through video conferencing. This includes –

• A deed, contract, or agreement;
• A will;
• A power of attorney or an enduring power of attorney instrument;
• An enduring guardianship appointment;
• An affidavit;
• A statutory declaration.

Witnessing requirements outside NSW

Ordinarily, the witness has to be physically present and see you signing the document.

For example, executing an affidavit in the ACT requires the oath or affirmation to be taken in the presence of a lawyer or Justice of the Peace. Wills in general require two or more witnesses be present at the same time when the testator’s signature is made. A statutory declaration must be declared before an authorised person.

For documents not governed by the NSW jurisdiction, the usual requirements apply.

Requirements of video conferencing

The video needs to contain “real time” audio and visual information between the person and the witness. A document cannot be witnessed by a recording of you signing the document.

When witnessing a document through video conferencing

The witness on the other side of the video link must:

• Observe you putting your signature on the document in real time;
• Sign the same document, or a copy of the document, that they witnessed your signature. The copy of the document could be a blank copy or a scan of the document just signed by you;
• Be reasonably satisfied that the document that they signed is the same document or a copy of the document signed by you;
• Write on the document, or copy of the document, the method used to witness your signature, and record that the document was witnessed in accordance with the Electronic Transactions Regulations 2017.

Be aware, witnessing through video conferencing would still require…

• The witness seeing the signature being made, or hearing the oath, through the video link;
• The witness being mentally present – not asleep, intoxicated, or of unsound mind.

Example

You are making a Will leaving properties in NSW.

You, alongside with two other witnesses, will switch on your webcams on your computers or mobile devices, where all three of you can hear and see each other through the electronic devices.

You will sign the Will.

The other two witnesses, having seen that you put your signature onto the Will, will:

• Each sign an identical counterpart of the Will that you signed, or a scanned copy of the Will that you just signed; and
• Write underneath their signatures that “this Will was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.

For further information or specific advice, please contact Michael James or Rex Li or another member of the Commercial Group at Trinity Law on (02) 6163 5050 or email your query michael.james@trinitylaw.com.au and rex.li@trinitylaw.com.au

The information in this document represents general information, and should not be relied for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact Trinity Law. Subject to the limits of the law, Trinity Law disclaims any liability on persons relying on this document.