esigning wills covid 19

Beam Me Up Scotty – Witnessing Documents Over the Net During the Pandemic

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Since 22 April 2020, legal documents can be witnessed and signed over the Internet in a legal milestone. On this date, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) came into effect. The Regulation is designed to overcome the NSW Government’s response to the COVID-19 pandemic has placed on gatherings, including legally necessary meetings. It allows remote witnessing and attesting legal documents via an audiovisual link.

Electronic signatures on Contracts

Since 2000, contract negotiations and forming binding contracts via electronic communication has been possible, with the Electronic Transactions Act 2000 (NSW) and updated with the Electronic Transactions Regulation 2017 (NSW). These laws also allow electronic means for legally required information and document transfer and storage.

For an electronic signature to be valid under the Electronic Transactions Act 2000 (NSW), it must comply with section 9 with the following:

  1. Identity – a method is used to identify the person and to indicate the person’s intention in respect of the information communicated, and
  2. Reliability – the technique used must be as reliable as appropriate for the purpose, and
  3. Consent – the parties must agree to the use of electronic signatures and the method used.

It is possible to apply an electronic signature via a digital signing platform. Still, before accepting an electronic signature from someone else, it is prudent to consider if the correct person is signing the document and the method’s reliability.

Witnessing documents via an audiovisual link, including Wills

Fast forward to 2020, and the COVID-19 pandemic has presented challenges to all businesses and arrangements that rely on people being in the same room.

In legal matters like Will signing, it is customary to have the solicitor and client meet to execute a valid Will with two witnesses. The pandemic has made that impossible, so the NSW Government has made amendments via the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“the Regulation”). The Regulation allows for ‘remote witnessing’ of legal documents via video camera. Also, it enables a more extensive range of people legally entitled to witness NSW statutory declarations than just the traditional Justices of the Peace.

The Regulation allows documents to be witnessed and attested via an audiovisual link, including the following:
• a Will,
• a power of attorney or enduring power of attorney,
• a deed or agreement,
• an enduring guardianship appointment,
• an affidavit,
• a statutory declaration.

For those rushing out to make their Will electronically, take note. The Regulation does not allow a YouTube free-for-all where you swap videos. The people involved must have their faces visible and recorded via an audiovisual link, not a still camera, in real-time. The witnesses must then sign the duplicate of the document and make a record of the circumstances on the composition and, where possible, a paper copy sent to the signer afterwards. The witnesses must also endorse the signed duplicate with a statement that it was witnessed as per the Electronic Transactions Regulation 2017 (NSW). The Regulation will expire on 21 September 2020 unless the NSW Parliament decides otherwise.

Although it is not legally required, making an audiovisual recording of the transaction is probably advisable, of course, with the participant’s consent.

Electronic execution of documents by company directors

The Federal Government’s Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) came into effect on 6 May 2020. The Determination temporarily modifies, up until 6 November 2020, the operation of section 127 of the Corporations Act 2001 (Cth) relating to the execution of documents by companies, including amending the meaning of “Document” to include a copy in electronic form.

Please contact Stevensen Business Lawyers for further advice. We can also offer access to DocuSign, an e-signature service.

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