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COVID-19 | Witnessing the execution of documents during the pandemic
Due to the current COVID-19 pandemic, people have found it challenging, if not impossible, to get their affidavits and statutory declarations witnessed.
Some Victorian and Federal Courts have issued practice notes stating that affidavits will be accepted unsworn on the understanding that they will be sworn later when circumstances allow.
Practitioners and clients in New South Wales have been awaiting guidance or practice notes regarding alternative procedures for swearing affidavits. On 22 April 2020, New South Wales passed a new Regulation.
What’s news in New South Wales?
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)
The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) included a regulation-making power in section 17 of Electronic Transactions Act 2000 (NSW) (the Act) to provide for altered arrangements for the signature, witnessing or attestation of documents, and can include documents referred to under, among others, the Oaths Act 1900 (NSW).
Following the passing of the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (the Regulation), which is an “emergency regulation”, under section 17 of the Act, the signing of key legal documents, including wills, powers of attorney or enduring powers of attorney, appointments of enduring guardianship, deeds or agreements, affidavits (including annexures or exhibits to affidavits) and statutory declarations, will now be able to witnessed in New South Wales using video technology.
As explained by Attorney General Mark Speakman SC when announcing the Regulation, the new temporary regulation will help reduce face-to-face contact during the COVID-19 pandemic:
“Thousands of legal documents are executed every day in the presence of one or more witnesses, but COVID-19 restrictions have made it difficult for many people to do in person…Our first priority is always the safety and wellbeing of NSW residents, which is why we are changing the way these documents can be witnessed while the pandemic endures”.
As noted above, the Regulation is intended to be temporary and is due to expire on 26 September 2020 or the earlier day decided by the New South Wales Parliament by resolution of either House of Parliament: see section 17(4) of the Act.
- traditional methods of signing and witnessing documents remain valid while the Regulations are in force;
- the Regulation also does not limit video witnessing to the types of documents referred to above and applies to any document that is required to be witnessed under an Act or another law.
How does the Regulation work?
Under the Regulation, a witness must see a person signing the document in real time to confirm the signature is legitimate, but now they can do so using video conferencing technology. In this regard, a person witnessing documents must:
- observe the person signing the document in real time;
- attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document;
- be reasonably satisfied the document the witness signs is the same document or a copy of the document signed by the signatory;
- endorse the document by specifying the method used to witness the signature and that the signature was witnessed in accordance with the Regulation. For example, a signature block could include a statement that “the document was signed in counterpart and witnessed over audio visual link (Zoom) in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.
Under clause 1 of the Regulation, audio visual link means any technology that enables continuous and contemporaneous audio and visual communication between persons at difference places. In practice, and having regard to Mr Speakman’s announcement regarding the Regulation, this likely includes Zoom, WhatsApp, Skype and FaceTime.
How can we help you?
The effects of COVID-19 are not an obstacle to completing or executing important legal documents like wills, powers of attorney, affidavits and statutory declarations. We can assist you with progressing these matters through these unprecedented times.
A copy of the Regulation is available here https://www.legislation.nsw.gov.au/regulations/2020 – 169.pdf