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New laws for witnessing documents during COVID-19

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A new law has been passed in New South Wales allowing, for a period of time, for documents – including Wills – to be witnessed via video link software such as ‘Zoom’ and ‘Facetime’.

The regulation which makes this route available is called the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) and was passed into effect on 22 April 2020.

What documents does it include?

The regulation permits the signing of documents to be witnessed by audio visual link, and applies to documents governed by NSW state laws, such as wills, powers of attorney, deeds, agreements, enduring guardianship appointments, affidavits and statutory declarations.

How does it work in practice?

  1.  
    • The witness must observe the person signing the document in real time. This means that the camera angle will need to allow you to see both the face and the signing hand of the person signing the document.
    • The witness may sign the document  or a copy of the document as witness. This can work in two ways:
      1. the witness may sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or,
      2. if the signatory scans and sends a copy of the signed document electronically, the witness may countersign the document as soon as practicable after witnessing the signing of the document.
    • If the document being witnessed is a will, the solicitor advising will need to ensure it still  meets the requirements of s. 6(1)(c) of the Succession Act 2006 i.e. that the testator should observe two witness signing the counterpart or copy document in real time and vice versa.
    • The witness must endorse the document, or the copy of the document with a statement that specifies the method used to witness the signing and that the document was witnessed in accordance with the Electronic Transactions Regulation 2017.

Conclusion

This is a sensible response to a fairly unique situation. We wonder whether, in time, this may be the way that all documents are executed/witnessed.

Please contact us if you wish to discuss any of the above.

If you have any questions about this article, please contact the office on 1800 870 407 and one of our solicitors/conveyancers will be able to assist.

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