Taking effect from 22 April 2020, the Electronic Transactions Regulation 2017 (NSW) has been amended to include new provisions (i.e. Schedule 1 Response to COVID-19 pandemic) relating to witnessing and attestation of documents during the COVID-19 pandemic.
The new regime allows:
- witnessing of a signature by audiovisual link
- performing arrangements in relation to witnessing and attestation of documents (e.g. confirming the identity of the signatory, or swearing or affirming the contents of an affidavit) by audiovisual link.
For the purpose of the new Schedule, ‘audio-video link’ means:
technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.
This would include some of the frequently used video conferencing applications such as Skype and Zoom.
The types of documents to which the new regime applies include:
- a will
- a power of attorney or enduring power of attorney
- a deed or agreement
- an enduring guardianship appointment
- an affidavit, including an annexure or exhibit to the affidavit
- a statutory declaration.
Where an audio video link is used for witnessing, the person witnessing must:
- observe the person signing the document sign the document in real time
- attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document
- be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory
- endorse the document, or the copy of the document, with a statement:
(i) specifying the method used to witness the signature of the signatory
(ii) that the document was witnessed in accordance with the regulation.
The witness may sign a counterpart of the document, or a signed and scanned copy of the document sent by the signatory, as soon as practicable after witnessing the signature.
In addition, the wording of the required endorsement may be to the effect of:
the document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.
If you would like more information about the regulation, please contact our specialists.