In response to the pandemic, the NSW government introduced the remote witnessing scheme to help people continue to manage their personal legal arrangements safely. After a successful 18-month trial period, the state government has announced they are extending these provisions. Attwood Marshall Lawyers Wills and Estates Partner, Angela Harry, discusses the effectiveness and security of the remote witnessing scheme.
The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 passed both Houses of NSW Parliament on 10th November 2021, after an 18-month trial period.
Before the introduction of this scheme, the witnessing requirements for certain documents required a witness to physically observe the person signing a document, and then sign as a witness on the same copy of the document. The physical witnessing requirements were often unworkable during the pandemic when lockdowns, border closures, social distancing and capacity restrictions were implemented.
At the height of the pandemic, these restrictions forced many workplaces to pivot to a work from home arrangement, making it even harder for people to follow traditional witnessing requirements that required a physical presence to ensure documents were executed in a legally binding way.
In April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulations) sought to address the limitations caused by the pandemic to provide for alternative arrangements for witnessing of signatures and the attestation of certain documents governed by New South Wales law. The Regulations were made under section 17 of the Electronic Transactions Act 2000 (NSW) (ETA), a special power introduced earlier in March 2020 by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
Remote witnessing provides greater flexibility for individuals and businesses, however traditional methods of signing and witnessing documents continue to remain available.
To mitigate the risk of fraud, the remote signing process must be witnessed in real-time, and the witnesses must be reasonably satisfied that they are signing the same document or an exact copy of the document. The witnesses must also endorse the document with a statement that they have complied with the requirements and state the method that was used to witness the signature.
The objectives of the Bill
To make permanent certain provisions that were introduced as a pilot scheme to enable the remote witnessing of documents
The Bill will benefit people living in regional, rural, and remote areas of New South Wales. It will also improve access to justice for vulnerable members of the community including the elderly, anyone suffering from illness or those with a disability.
To identify the document that is the original document when a document is witnessed remotely
The Bill outlines that a document shall be an original document where it:
(a) contains every page or part of the document; and
(b) contains each signature or mark of the signatory and witnesses wherever required in the document; and
(c) contains the remote witnessing endorsement required by the Electronic Transactions Act 2000; and
(d) if a signature was applied to the same page or part by persons in different locations, contains duplicates of the page or part so that every signature is included; and
(e) for a signature written physically on a page or part—contains the actual signature
To identify the place of execution of the document and to make clear it is not necessary for the signatory or witness to physically be in New South Wales to witness a document remotely
The Bill provides that where the signatory signs a document in New South Wales, the document shall be deemed to have been witnessed in New South Wales. It also allows for a document to be witnessed pursuant to the NSW law, even if the signatory, the witness, or both, are outside of the jurisdiction of New South Wales.
In addition to making the remote witnessing scheme permanent, The Bill seeks to allow for an extension of the current ‘temporary’ powers to allow for Statutory Declarations to be made in the presence of a wider class of persons than those currently authorised by the NSW Oaths Act 1900. This wider class of persons is in line with the persons authorised under the Commonwealth Statutory Declarations Act 1959.
This expansion of the classes of authorised persons is only temporary and will remain in place until 1 January 2023.
Which documents can be witnessed remotely?
Documents that can be witnessed by audio-visual link (AVL) remotely include:
- A Will
- A Power of Attorney or Enduring Power of Attorney, or Appointment of Enduring Guardian
- A deed or agreement
- An affidavit, including annexure or exhibit
- A statutory declaration.
As with the regulations, the conditions to remotely witness a signature include that the witness must:
- Observe the signatory sign the document in real-time
- Confirm they witnessed the signature by signing a counterpart, or countersigning the document
- Endorse the document with a statement specifying the method used to witness the execution of the document. For example: “This document was signed in counterpart and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000″.
- Be reasonably satisfied that the document signed is the same (or a copy of) the document signed by the signatory (e.g. read aloud or page turn comparison).
It is important to note that this Bill does not replace documents being able to be witnessed in the traditional way. Documents can still be witnessed in person in the presence of the signatory. The remote witnessing provisions offers an alternative option to witnessing documents via audio-visual link where it is not possible to meet safely in person, or in instances where it is more convenient to do so.
At Attwood Marshall Lawyers, we continue to accommodate both face-to-face document signing and remote witnessing of documents, and our offices follow COVID Safe compliance policies to ensure our clients and our staff are safe and protected.
Regardless of the method used for witnessing a document, for the document to be legally valid it still requires the signatory to possess mental (or testamentary) capacity and under a free will (i.e. be free from influence from others). There are a few considerations to give to remote witnessing to ensure that these requirements are met.
Risks associated with remote witnessing of a Will
Risk of fraud
In accordance with government guidance, the whole document signing process should be recorded, and the recording retained. Although this is recommended, this is not a legal requirement, and the witnesses do not need to see the complete Will before it is signed, only the front and signature pages. As many Wills have a cover page attached that includes only the name of the Testator and the drafter’s details, this could ultimately be considered the front page, instead of the actual first page of the Will which provides greater detail and ultimately provides some evidence there is substance to the document being signed.
In any event, even having witnessed the Testator executing the Will, it is possible that the Will-maker’s signature might be forged on a second Will, which could then be sent to the witnesses for their signatures. This risk of forgery is significantly lessened if the Will is prepared by a professional estate planning lawyer.
There is also the risk of the Will-maker signing one Will on video link in the virtual presence of the witnesses, but then being pressured to sign an alternative Will off camera, which is then posted to the unsuspecting witnesses for their signature. This scenario is less likely to happen if the Will is prepared by a professional estate planning lawyer. In addition to these risks, there is also the risk that a third party with access to a Word document in draft could make their own amendments to the document (such as adding a benefit to themselves) before it is sent to the witnesses to sign. This scenario is plausible if there is potential for undue influence.
If the final signed Will is to be stored by a professional advisor, something that Attwood Marshall Lawyers do for their clients by storing Wills and other important legal documents in our strongroom free of charge, then the document should be cross-checked on receipt against the document that was sent out to the Testator to ensure nothing suspicious has occurred throughout the course of the signing process.
Risk of undue influence
A testator can give permission for the witnesses to be sent a copy of their final Will before it is signed. A Will is an extremely personal and private document and should not be sent to the witnesses without permission from the Will-maker. It is not unusual for the witnesses to see a complete copy of the Will before signing (as they will now have the opportunity to do when signing documents by way of audio-visual link), which potentially raises its own difficulties around confidentiality and choice of witnesses. There is also the question of who else might be in the room with the testator (but off camera) at the time they sign the document, which raises more concerns about undue influence. Ordinarily, you would have the two witnesses present who could attest to who else was in the room, if required. From an evidential perspective, if the validity of the Will was to be called into question after the Will-maker passes away, those witnesses would say that they had seen the Testator signing a Will, i.e., their evidence would go in favour of the validity of the Will. Those witnessing the Will via audio-visual link are recommended to ask who else is in the room, though this method is clearly not fool-proof.
An increase in the number of contested Wills
There are concerns that the complex nature of the provisions might lead to an increase in the number of Wills that have been signed remotely being contested. A Will could be challenged on the grounds the video quality was poor, or that the signing process was not followed correctly.
Whilst undue influence is always a risk, the physical presence of witnesses makes it more difficult for a Will-maker to be unduly influenced at the point they execute their Will. These risks are also mitigated when the process is handled by an estate planning lawyer.
Government guidance suggests that, if possible, both the video-signing and witnessing process be recorded and evidence retained, on the basis that this may assist a court in the event that a Will is challenged at a later date. These recordings should assist in determining whether the Will was validly made, and it may assist to some degree in the case of allegations of undue influence, fraud, or lack of testamentary capacity. However, as previously stated, there is no legal obligation to record the process, and technology is not fail-safe.
The remote witnessing procedure continues to be a complex and highly utilised procedure. Given that the consequences of failing to follow the procedure perfectly are that the Will may be deemed invalid, and a Will-maker’s testamentary wishes may not be carried out, it is important to exercise caution in using the procedure when executing your Will and get the right legal advice to ensure that these important legal documents will be upheld.
The Justice Legislation (COVID-19 Emergency Response—Permanency) Amendment Bill 2021 (Qld) (Permanency Bill) was assented to on 24th November 2021 and has very similar provisions, although an Enduring Power of Attorney cannot be witnessed remotely in Qld. We will provide a further update on Queensland in the near future.
Attwood Marshall Lawyers – helping you plan for the future and uphold your wishes
While there is a level of convenience in allowing electronic execution and remote witnessing of Wills and power of attorney documents, the risks that arise in witnessing these important legal documents via audio-visual link should be considered. Obtaining advice from an experienced Wills and Estates lawyer is prudent and will help mitigate certain risks, such as fraud, undue influence and unconscionable conduct, and reduce the risk of your Will being challenged after you have passed away.
With one of the largest Wills and Estates Departments in Australia, we want to make it as easy and as cost-effective as possible for everyone to have their most basic legal documents in order.
If you need assistance drafting a Will, Enduring Power of Attorney, or simply want to better understand what documents you should consider to ensure your assets are passed on to who you want to benefit after you are gone,, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email email@example.com or free call 1800 621 071 any time.