On Wednesday 22 April 2020, the NSW Government implemented the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020. The legislative response to COVID-19 permits electronic witnessing of estate planning documents, such as wills, powers of attorney, and enduring guardianship. The new regulation also allows affidavits, deeds, agreements, and statutory declarations to be witnessed via audio-visual link.
Historically, only certain agreements were able to be made electronically under the Electronic Transactions Act 2000, but estate planning documents, affidavits and statutory declarations were excluded due to the witnessing requirements.
NSW is the first state or territory in Australia to introduce similar regulations under the Emergency Measures Bill that we previously blogged about last month, and we are thrilled to see our Government moving swiftly in response to the pandemic.
Electronic Witnessing
A person witnessing the signing of a document by audio visual link must:
- Observe the person signing the document in real time; and
- Attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document; and
- 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 copy of the document, with a statement
- Specifying the method used the witness the signature; and
- That the document was witnessed in accordance with the Regulation.
Witnesses may sign a counterpart of the document as soon as practicable after witnessing the signing of the document, OR countersign the scanned document received from the signatory as soon as practicable after witnessing the signed document.
The amendments will apply for 6 months from 22 April 2020.
Please contact a member of the Cheney Suthers team if you would like more information, require estate planning advice or need a document witnessed remotely.
