The witnessing requirements in NSW have been relaxed due to the COVID-19 threat by virtue of a new regulation that amends the Electronic Transactions Regulation 2017 (Regulation). The Regulation came into effect on 22 April 2020. The new regime will be in force until they expire on 26 September 2020, (unless otherwise changed by Parliament), being 6 months after the emergency measures were introduced.
If a document is required under any law to be witnessed, the signature can be witnessed by audio visual link. A host of technology platforms could be used, including but not limited to Zoom, FaceTime, WhatsApp and Skype.
For the purposes of the Regulation, a “document” includes:
(a) A will;
(b) A power of attorney including an enduring power of attorney;
(c) A deed or agreement;
(d) An enduring guardianship appointment
(e) An affidavit, including an annexure or exhibit to the affidavit; and
(f) A statutory declaration.
The witness must observe the person signing the document in real time.
The witness must be satisfied that what they are signing is the same document or a copy of the same document that is being signed by the signatory.
The witness must then endorse the document with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with this Regulation.
The signature block could include a statement to the effect that the document was signed in counterpart and witnessed by way of audio visual link (Face Time) in accordance with the provisions of Schedule 1 to the Electronic Transactions Regulation 2017.
In practice, a witness may confirm the signature was witnessed by signing a counterpart of the document as soon as practicable after witnessing the signing of the document or if the signatory scans and sends a copy of the signed document electronically, the witness countersigns that document as soon as practicable after witnessing the signing of the document.
