COVID-19 has resulted in a large percentage of the population working remotely, and physical distancing measures have made it difficult for individuals to meet in person. This means that the way we sign and witness documents have been disrupted. State governments have introduced legislation to try and make witnessing more practical during this unprecedented time. This article will unpack how signatures can be witnessed during COVID-19.
When Does a Signature Need a Witness?
A witness signature is the signature of someone who watches you sign a legal document, such as a person that watches you sign a lease. Whether or not a contract needs a witness depends on what type of contract it is. While most contracts do not require a witness, you will need a witness for evidentiary purposes in many circumstances. This helps prove that the person signing the document is who they say they are and actually signed it themselves. The following documents require a witness:
- mortgage documents and other financial documents;
- deeds (in most states);
- statutory declarations;
- affidavits and other documents in legal proceedings; and
- powers of attorney.
What Are the Requirements of a Witness?
In general, a witness must:
- be over 18 years old;
- know the person that they are witnessing the signature for;
- not be under the influence of drugs;
- be of sound mind;
- not be a party to the document or have any financial interest in it; and
- not be a beneficiary if the document is a trust or self-managed superannuation fund.
Some legal documents need an 'authorised witness'. This may include a:
- solicitor or barrister;
- justice of the peace; or
- notary public.
Correctly Witnessing a Signature During COVID-19
New South Wales
New South Wales was the first state to introduce laws during COVID-19 to facilitate the witnessing of signatures and attestation of documents by audiovisual link.
An audiovisual link is a technology that enables continuous and contemporaneous audio and visual communication between persons at different places. This includes video technology such as Zoom or Skype.
To properly witness the signature, the witness must:
- see the act of signing in real-time;
- sign a counterpart of the document or a scanned copy of the signed document sent electronically by the signatory;
- be reasonably confident that the document they are signing is the same as the document the signatory is signing; and
- endorse the document or a copy of the document with a statement specifying the method of witnessing. It should also outline that the document was witnessed in accordance with the emergency COVID-19 regulations.
Australian Capital Territory
The regulations in the Australian Capital Territory largely mirror that of New South Wales. They permit remote witnessing as long as the signature is properly witnessed via an audiovisual link.
Similar to New South Wales, signatures can now be witnessed electronically in Victoria. In Victoria, the regulations require the signing of a document electronically to occur in counterparts. This means that each party to the document will need to receive a copy of each signed counterpart.
Signing in counterpart means that duplicate copies of the document are printed so that each party can sign a separate copy of exactly the same document.
In Queensland, some regulations have been introduced regarding:
- enduring powers of attorney; and
- to allow affidavits and statutory documents to be witnessed by a special witness (e.g. a solicitor, Justice of the Peace or Notary Public) over an audiovisual link.
However, the regulations have not been extended more generally. It is noteworthy that Queensland has removed the requirement for deeds to have a witness.
While new regulations permit that a requirement for two or more persons to be physically present will be satisfied if the persons meet or the transaction takes place remotely using an audiovisual link, there are a number of exclusions.
These include that a witness must be physically present to witness the signing, execution, certification or stamping of a document or to take an oath, affirmation or declaration in relation to a document. This makes it difficult for many documents to be witnessed during COVID-19.
The Northern Territory and Western Australia have not introduced any changes in relation to remote witnessing during COVID-19. Tasmania permits online witnessing for the taking or receiving, swearing, signing or witnessing of signatures of an affidavit, declaration or other statutory documents.
Most state regulations are only temporary during COVID-19. They may be extended, but it is important to check before witnessing a document electronically.
When You Will Not Need a Signature
For simple contracts that do not need a witness, they can be largely executed electronically and without a witness. To ensure an electronic signature is valid, the following requirements must be met:
- identification – the method of signature must be able to identify the person signing the document. It should also indicate their intention to be bound by the document;
- reliability – the method of signature must be reliable in light of the circumstances. This includes the type of document you are signing; and
- consent – the parties to the document should consent to use an e-signature to execute the document.
COVID-19 has created difficulties for documents signing and witnessing due to the limited face to face contact allowed. To assist with this, many states have introduced regulations around witnessing signatures electronically over an audiovisual link. If you are going to witness or have a document witnessed in this manner, it is important that you do it correctly to ensure that the document is valid and binding.
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.