COVID-19 shaped our day-to-day lives including how we signed and witnessed our legal documentation. On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Regulations) were introduced enabling remote signing and witnessing of legal documentation via audio link and audio-visual link. Last October, these Regulations were further extended to end on 26 April 2021.
On 23 March 2021, the Victorian Government passed the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (JLA). The JLA's purpose was to continue conducting signing and witnessing of legal documents and to conduct virtual court hearings in order to minimise the backlog of Court cases beyond the Regulations. The JLA is scheduled to operate until the 23 February 2023.
What legal documentation can continue to be witnessed electronically?
From 26th April 2021, the following documentation may continue to be signed and witnessed remotely:
- Statutory Declarations;
- Wills (not international Wills); and
- Powers of Attorney.
What is the remote procedure of signing and witnessing legal documentation? 1
A legal document can be signed or witnessed by audio link or audio-visual link but must comply with the following procedure:
- have a valid principal and witness or affidavit taker;
- be signed on the same day and within Victoria;
- the principal or affidavit taker must either sign or have a substitute (only for Wills and Powers of Attorney's) sign the document with all witnesses clearly seeing that signature made by audio-visual link or by a combination of physical presence and audio visual link; or
- transmit the document by electronic means to any witness by
audio visual link who must -
- be satisfied that the document being witnessed is the same document that was signed by the principal or affidavit taker or its substitute (only for Wills and Powers of Attorney's);
- ensure the document is accompanied with a statement that it was witnessed by audio visual link in accordance with the procedure;
- sign the document which can clearly be seen by the principal or affidavit taker or its substitute (only for Wills and Powers of Attorney's) by audio-visual link.
- the witness must sign the document last whether physically present with the principal or affidavit taker or not;
- if there is a special witness (only for Wills and Powers of Attorney's) ensure that the document is double checked by them to ensure it is compliant with the remote witnessing procedure as set out in steps 1-4.
Note: There is no need to electronically record the remote signing and witnessing of a Will or Power of Attorney by electronic means, unless all parties agree in doing so.2
The JLA will enable the continuance of electronic signing and witnessing of documentation which will still be a valid executed document in accordance with the JLA.
If you need to have a document signed or witnessed we are still able to do so electronically. Alternatively, we are now back in the office and are happy to assist you in our office.
1 JLA, ss. 67, 71, 72, 73, 77, 80, 81, 90.
2 JLA, ss. 81, 90.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.