As you are all no doubt painfully aware, COVID-19 resulted in disruption to many areas of our lives. The social distancing restrictions made it particularly difficult to attend to the witnessing of estate planning documents since legalities dictate that the witness must be physically present during the signing of the documents.
A temporary measure was put in place by The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) which came into effect on 22 April 2020. The Regulation will last for 6 months; however, the NSW Parliament can extend the Regulation to a maximum of 12 months.
The Regulation allows a person to witness a document by audio-visual link under specific circumstances. It’s important to note though, that the traditional methods of signing and witnessing documents are still valid while the Regulations are in force and in some circumstances, they are the preferred method.
Which documents does the Regulation apply to?
The Regulation applies to:
- Powers of Attorney including Enduring Powers of Attorney;
- Appointments of Enduring Guardians;
- Deeds or Agreements; and
- Statutory Declarations.
How does it work?
The witnessing may take place by audio video link which is defined as any technology that enables continuous and contemporaneous audio and visual communication between persons at different places. This includes the use of platforms such as Zoom, WhatsApp, Skype and FaceTime.
The person witnessing must see the person signing the document in real time and then confirm the signature was witnessed by signing the document or a copy of the document as soon as practicable after witnessing. Alternatively, the witness may sign a counterpart of the document or the person signing may scan and email a copy of the signed document to the witness to countersign.
The document (or copy) must be endorsed by the witness specifying how it was witnessed and noting that the document was witnessed in accordance with the Regulations. The witness must be “reasonably satisfied” that the document which the person signed is the same document that the witness signed.
The method used to witness the document will depend on the circumstances and the particular document being signed.
How can we help you?
Don’t let COVID-19 prevent you from starting or completing your estate planning. We’re always here to help you and especially during these difficult times. Contact our estate planning team to discuss your requirements and we will work out the best way to help you achieve your estate planning goals.