Australia: Witnessing documents by video link in NSW: Special measures introduced due to COVID-19

Witnessing documents previously done in person

With much of the world working from home at the moment, and social distancing rules, there are a number of obstacles to witnessing documents in the usual way.

Since the government imposed the lockdown as a response to the coronavirus pandemic, we have noticed an influx of people from the community wanting to secure their estates by creating their wills, powers of attorney and enduring guardianship documents.

Unfortunately, until now, those documents had to be witnessed in person. This made witnessing those documents extremely difficult, and in some cases impossible.

NSW government allows for witnessing of critical documents via video link

The NSW government has created a way for lawyers to witness critical documents over video link by introducing regulation 17 of the Electronic Transactions Act 2000.

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

The regulation is the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020.

What will witnessing documents by video link look like in practice?

Both the client and the lawyer will require some kind of video service, whether this is FaceTime on an iPhone, Zoom, Houseparty, or some other face-to-face web video conferencing program.

The lawyer must be satisfied that the documents being signed are the documents the lawyer is to be witnessing, and the video is to show the person signing the documents.

The witness can then sign a counterpart of the documents, or the lawyer can send copies to the witness and the witness may then sign as soon as practicable afterwards.

All parties must consent if video is to be recorded

If it is a will, then both witnesses and the will-maker must be on the same video link conference.

Consent must be taken from all parties if the video is to be recorded.

The identity of the person who is signing must be verified at all times.

If there is more than one document signed, the documents must be kept together, and file notes also must be kept together with the documents.