The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (Regulation) was passed on 22 April 2020 enabling the electronic witnessing of documents in New South Wales by way of audio visual link. The Regulation provides welcome relief for legal practitioners and clients who are no longer required to meet in person to execute critical legal documentation.
What documents may be witnessed electronically?
The Regulation applies to any document required to be witnessed under New South Wales law including:
- powers of attorney (including enduring powers of attorney);
- enduring guardianship appointments;
- deeds or agreements;
- affidavits; and
- statutory declarations.
What is audio visual link?
Audio visual link encompasses technology that enables continuous and contemporaneous audio and visual communication between persons at different places. This includes all forms of video conferencing and allows meetings to be undertaken (for example, by Zoom, Skype, Microsoft Teams, FaceTime and WhatsApp).
What are the requirements for witnessing by audio visual link?
There are specific requirements that must be complied with for a document to be witnessed by audio visual link. These include:
- Observation in real time: A witness must observe the person signing the document in real time. This requires a witness to actually see the document being signed and witnesses should ensure that they can simultaneously see both the face and signing hand of the signatory.
- Confirmation of signature: A witness must confirm the signature was witnessed by signing a counterpart of the relevant document or a copy of the document signed by the signatory as soon as practicable after witnessing the signing of the document.
- Identical documents: Reasonable steps must be taken by the witness to satisfy themselves that the document the witness signs is the same document signed by the signatory. In most cases, this will require the witness to view the actual terms of the document being signed.
- Endorsement: The document signed by the witness must be endorsed with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the Regulation.
For how long will the Regulation apply?
The Regulation will expire on 22 October 2020 unless otherwise determined by NSW Parliament.
What if more than one witness is required?
Documents requiring more than one witness (for example, Wills) can also be signed in accordance with the Regulation. Both witnesses must be present at the same time and, in addition to witnessing the signatory signing, each witness will also need to witness the other witness’ signature (in the same manner as described above).
The new Regulation allows transactions to continue despite the social distancing requirements imposed as a result of COVID-19. Clients who have been delaying their estate planning or other transactions due to the uncertainty surrounding execution of relevant documentation can now proceed without concern about having to physically meet with their lawyers.