On 22 April 2020 the Governor declared a new temporary regulation that can be used in the witnessing of Wills, enduring powers of attorney, appointments of enduring guardian, affidavits and statutory declarations.
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The temporary Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (Witnessing Reg), commences on the date it was published on the NSW Government legislation site. The Witnessing Reg has been published on the site so is now effective.
If documents referred to above cannot be witnessed in the physical presence of a witness (or two witnesses for Wills), the Witness Reg permits a witness to:
- sign a counterpart of the document as soon as practicable after witnessing the signing of the document, or
- if the signatory scans and sends a copy of the signed document electronically – countersign the document as soon a practicable after witnessing the signing of the document.
The witness(es) must observe the person signing the document in real time and attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document.
The witness needs to endorse the document, or a copy of the document, with a statement:
- specifying the method used to witness the signature of the signatory; and
- that the document was witnessed in accordance with the Witness Reg.
The Witness Reg suggests the following endorsement:
‘That 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.’
In practical terms, unless the clients have access to a scanner, the better option is for the witness(s) to have a copy of the document the client is signing, and then once the client has signed the document, the witness(es) sign the counterpart with the endorsement.
At least we can now be certain documents will be valid if not witnessed in the physical presence of the signatory.
Now is the time to Plan. Don’t leave it until it is too late! – contact JPM Legal to make an appointment with Eileen Meehan to discuss your unique circumstances.