Electronic witnessing of documents

Wednesday, 6 October 2021

Electronic witnessing of documents

Under the COVID-19 Emergency Response Act 2020 (ACT), the following changes are in force during a COVID-19 Emergency.

Witnessing and attestation of certain documents

Relevant documents (Affidavits, Wills, Health Directions, and General/Enduring Powers of Attorney) can now be witnessed by audio-visual link (being a system of two-way communication linking different places so that a person at any of them can be seen and heard at the other places).

The witness must:

  1. observe the person signing the document (the signatory) sign the document in real time;
  2. confirm the signature was witnessed by signing the document or a copy of the document; and
  3. be reasonably satisfied the document the witness signs is the same document, or a copy of the document, signed by the signatory; and
  4. endorse the document, or the copy of the document, with a statement—
    1. of the method used to witness the signature of the signatory; and
    2. that the document was witnessed in accordance with this section.

Without limiting how a witness may confirm a signature was witnessed for (b), the witness may—

  1. sign a counterpart of the document as soon as practicable after witnessing the signing of the document; or
  2. if the signatory scans and sends the witness a copy of the signed document electronically—countersign the document as soon as practicable after witnessing the signing of the document.

Practitioners adopting these procedures should continue to ensure that they properly identify their client, ascertain whether the client is under any undue influence, and ensure that the client has read and understands the document and its effect.

Example steps

The following is an example of how the provisions outlined above could be implemented. This is provided as guidance for members, but is not intended to form legal advice and should not be relied upon as legal advice.

1. Set up an audiovisual link appointment. For example:

  • Facetime on an iPhone
  • skype video call
  • whatsapp video call
  • Microsoft teams video conference
  • Zoom video conference
  • Any other platform providing a system of two-way communication linking different places so that all participants can be seen and heard by each other.

2. Confirm the identity of the person signing the document. For example, ask the person to hold their ID in front of their camera.

3. Depending on the document to be signed (for instance, a Will or Power of Attorney), ask the person if there is anyone else in the room with them.

4. You must “observe the person signing the document in real time”. To do this, ask the person signing to angle their camera so that you can see their hand placing their signature on the page they are signing.

5. The person must then send the signed document back to the solicitor. This can be electronically (e.g. scan and email), or physically (e.g. by post or courier).

6. The solicitor then signs a counterpart document, a copy of the document (e.g. an emailed scan), or the same original document (once received).

7. The solicitor must write on the document (before or after execution) the method used to witness the signature and that the document was witnessed in accordance with section 4 of the COVID Emergency Response Act 2020 (ACT). For example:

  • "I witnessed the signature of the deponent pursuant to Section 4 of the Covid-19 Emergency Response Act 2020 by observing the deponent signing the document in real time via audio visual link and I confirmed the signature by countersigning the document as soon as practicable after witnessing the signing of the document which I am satisfied is the same document signed by the deponent."
  • "I witnessed the signature of the deponent pursuant to Section 4 of the Covid-19 Emergency Response Act 2020 by observing the deponent signing the document in real time via audio visual link and I confirmed the signature by countersigning a copy of the signed document scanned and sent electronically the document as soon as practicable after witnessing the signing of the document which I am satisfied is the same document signed by the deponent."
  • "I witnessed the signature of the deponent pursuant to Section 4 of the Covid-19 Emergency Response Act 2020 by observing the deponent signing the document in real time via audio visual link and I confirmed the signature by signing a counterpart of the document as soon as practicable after witnessing the signing of the document which I am satisfied is the same document signed by the deponent."

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