AN UPDATE ON ELECTRONIC WITNESSING OF CERTAIN DOCUMENTS
In April of 2020 the Electronic Transactions Act (NSW) was amended by Regulation to allow the witnessing of certain documents to be witnessed by an AV link. In September 2020, those provisions were extended to 31 December 2021. The documents include deeds, agreements, affidavits, stat decs, wills and powers of attorney amongst others (see Part 2B of the Act). The Law Society of NSW has helpfully provided guidelines to assist witnesses who are asked to witness via an AV link.
To comply with the Act the witness must:-
- See person sign the document in real time. You have to be able to see the document and the hand of the witness signing the document at the same time (think wide angle shot).
- Be “reasonable satisfied” that the document the witness signs is the same document that has been signed by the signatory. As there is no definition for “reasonably satisfied” it might be best for the signatory to read out the document or to have the parties compare each page holding it close to the camera.
- Sign the document or a copy of the document as witness. This can be done in 2 possible ways:- a) that the witness may sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or,
b) if the signatory scans and sends a copy of the signed document electronically, the
witness may countersign the document as soon as practicable after witnessing the
signing of the document.
- Endorse the document and each copy of the document with a statement specifying the method that was used to witness the signing and that the witnessing was in accordance with the Electronic Transactions Act. There is no prescribed wording for this endorsement. An endorsement along the following lines may be appropriate:
“This document was signed [in counterpart] and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000.” (delete words where appropriate)
Always remember that there are risks in remote witnessing so make sure you properly identify and verify the witness, obtain name, address and other details and keep a copy of the recording if you can (with the parties consent) or detailed notes of what took place.
If you are unsure what to do then please make contact by calling 02-8488-3389 or emailing email@example.com.