At the beginning of the COVID-19 pandemic in March 2020, legal practitioners and their clients faced particular challenges with regard to the signing and witnessing of certain legal documents. The stay-at-home orders and self-isolation rules raised an urgent question:
How will clients sign wills, enduring powers of attorney, appointments of enduring guardian, statutory declarations, affidavits and deeds when the witness or witnesses are usually required to be in the physical presence of the signatory?
The NSW Parliament addressed the issue in April 2020 by introducing emergency legislation allowing the signing and witnessing of documents over audio visual link. The change was considered temporary, with an anticipated end-date of 26 September 2020. When it became clear the emergency measure would be required past that date, the NSW Parliament extended the date to the end of 2021.
What are the changes?
Legislation has now passed both Houses of NSW Parliament which will cement the temporary measures into law. The Attorney General Mark Speakman, when commenting on the Electronic Transactions Amendment (Remote Witnessing) Bill 2021 (The Bill), said that the remote witnessing of important documents such as wills, statutory declarations and affidavits over video link will now become “a permanent feature of the NSW legal landscape”.
Mr Speakman went on to say that he was satisfied sufficient safeguards are in place to address the risk of fraud. Legal practitioners play an important role in this regard. They must ensure that the document they are witnessing is the same document or an exact copy of the document the client is signing. They must also endorse the document with a statement about the method of signing.
Of course, the document must be signed and witnessed in real time and the legal practitioner must also be satisfied the client understands the nature and effect of the document and is not under any mental incapacity or undue influence to sign the document.
The Bill also clarifies that it is not necessary for the signatory or the witness to be physically present in New South Wales when witnessing a document remotely.
The Bill contemplates that it might be necessary to exclude certain documents from the remote witnessing scheme in the future. It might also be necessary to stipulate exact methods, technologies and processes to be followed. This is to be expected with any law in its nascent stages, especially when it is attempting to change centuries of legal tradition.
Mr Speakman also said that “continuing these measures will benefit people living in rural, regional and remote areas. It will also improve access to justice for vulnerable members of the community including older people, people suffering from illness or people with a disability.”
What is the impact?
It seems that the legislation was initially introduced to address an immediate problem caused by the pandemic, is now being used to ensure greater choice and flexibility for individuals and businesses generally.
Please contact Hicksons Special Counsel, Roslyn Pavey, at [email protected]u if you need any assistance or guidance.
Post by Hicksons Special Counsel, Roslyn Pavey.