Remote Witnessing of Legal Documents

The COVID-19 pandemic has vastly affected, and nowadays altered, the world in which we live. Lockdowns and the necessity of social isolation resulted in the need for change in the ways in which many industries functioned.

Legal practice was one such industry. Practitioners and clients are becoming used to online court proceedings by telephone or audio-visual link (AVL), or directions hearings by exchange of messages in an online portal. The restrictions put in place as a result of the pandemic have also lead to amendments to the Electronic Transactions Regulation 2017 (NSW) (‘the Regulation’)allowing for the remote witnessing of legal documents such as wills and affidavits, which previously had to be witnessed in person.

Amendments were made to the Regulation in 2020 as a temporary measure to prevent the law requiring people to come together to sign documents. After being extended several times throughout 2021, the measures are now in place indefinitely thanks to the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW). Remote witnessing is now provided for under s 14G of the Electronic Transactions Act 2000 (NSW) (‘the Act’).

To witness a document remotely in accordance with s 14G of the Act, the witness must:

  • observe the person signing the document sign the document in real time by AVL;
  • 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; and
  • endorse the document, or the copy of the document, with a statement specifying the method used to witness the signature of the signatory, and that the document was witnessed in accordance with s 14G of the Act.

The Act does not affect the requirements as to who can be a ‘witness’ to a signature. If the document requires a qualified witness, such as a solicitor or a Justice of the Peace, the Act does not change that requirement.  It also does not limit which documents can be signed and witnessed by AVL.

After witnessing the person sign the document by AVL, the witness has two options:  either sign a counterpart of the document, or sign a copy of the signed document the person sends to the witness electronically.  Either way, the witness must sign as soon as practicable after the person has signed.

Remote witnessing has been highly advantageous to the legal industry, allowing the witnessing of signatures all around New South Wales, Australia and the world without leaving the office. It is of particular use to clients who live in rural and remote areas.

However, remote witnessing does have some limitations, and practitioners should take care. These limitations include:

  • the possibility of undue influence and coercion on the signatory by a person ‘off camera’ and not visible to the witness;
  • the need to confirm mental capacity;
  • that some clients may not have easy access to an audio-visual link service; and
  • the need to document interaction with the client when signing documents in greater detail than usual.

It should also be noted that the Act does not allow the remote verification of true copies of documents. That must still be done in person by the witness examining the original document and certifying the copy.

Despite these limitations, remote witnessing is a time saving process that provides easier access to legal services. If you have any issues or queries relating to the remote witnessing of legal documents, we can assist you at Vector Legal.