Posted on November 21, 2021 by 7

Signing legal documents remotely in NSW

New legislation in New South Wales now allows legal documents such as wills, statutory declarations and affidavits to be signed and witnessed remotely.

The new legislation removes the need for clients to physically attend their solicitor’s office to execute documents. It also removes significant barriers for those in rural and remote areas and others for whom travelling may be difficult.

Background

Many important legal documents must be witnessed by legal practitioners. Previously, this could only occur in the presence of a solicitor, necessitating a trip to the solicitor’s office to sign in hard copy. In many instances with an elderly parent or relative where travel was not possible this required the solicitor to attend a hospital to physically witness signing of important documents.

In response to the Covid-19 pandemic the New South Wales Government used its emergency powers to introduce legislation aimed at making it easier for individuals to sign legal documents and for their solicitors to witness the signing remotely: Electronic Transactions Amendment (Covid-19 Witnessing of Documents) Regulation 2020.

The legislation amended the Electronic Transactions Regulation 2017 to allow:

1. documents that require a witness to be witnessed by audio visual link; and
2. tasks in relation to witnessing a document to be performed by audio visual link; and
3. an oath, declaration or affidavit to be taken or made before an Australian legal practitioner by audio visual link.

The documents covered by the amendment were:

1. a will;
2. a power of attorney;
3. a deed or agreement;
4. an enduring guardianship appointment;
5. an affidavit; and
6. a statutory declaration.

Changes to stay

The changes have, for the most part, proved to be popular amongst clients and legal practitioners alike.

After an 18-month trial period, the changes will now become permanent in New South Wales following the passing of the Electronic Transactions Amendment (Remote Witnessing) Bill 2021.

The Bill, once it receives assent and becomes the  Electronic Transactions Amendment (Remote Witnessing) Act 2021 will, amongst other things, amend the Electronic Transactions Act 2000 and the Oaths Act 1900 to:

1. make permanent the temporary changes that allowed oaths, declarations and affidavits to be taken or made before an Australian legal practitioner remotely;
2. clarify which document is the original document when a document is witnessed remotely;
3. make clear that it is not necessary for the signatory or witness to be physically present in New South Wales to witness a document remotely;
4. specify the place at which a document is executed if it is witnessed remotely (it is the place the signatory was at the time of execution); and
5. expand the class of persons before whom a statutory declaration can be made.

Legal practitioners will need to understand the changes and the additional measures required to ensure documents are signed and witnessed properly.

For individuals, organisations and businesses, remote witnessing of documents provides greater flexibility and choice.

Traditional methods of signing and witnessing documents remain available and in some instances may be preferable (for example assessing capacity or where a practitioner may suspect coercion).

On a whole though, the changes are expected to benefit both clients and legal practitioners resulting in increases in efficiency and reduction in costs. The changes will likely greatly benefit those in regional and remote areas, vulnerable members in the community who may not be able to travel, and those abroad.

The Bill can be found here.

If you wish to discuss this blog or have any questions regarding signing documents or related issues please contact Frances Tse on (02) 8235 9711.