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The pandemic has raised some real practical difficulties around signing and witnessing legal documents because of strict social distancing rules in place to protect us all.

In order to facilitate and decrease the need for face to face contact for the witnessing of certain legal documents during the COVID-19 pandemic, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) was enacted on 22 April 2020.

The Regulation will allow for specific legal documents to be witnessed by audio-visual link. The Regulation will remain in force for a period of six months, or for a shorter period subject to the discretion of the New South Wales Parliament.

What documents are covered by the Regulation?

The Regulation includes the following documents signed and witnessed in NSW:

  1. Wills;
  2. Powers of Attorney or Enduring Powers of Attorney;
  3. Deeds and Agreements;
  4. Enduring Guardianship appointments;
  5. Affidavits (including any annexures or any exhibits to an Affidavit); and
  6. Statutory Declarations.

What is required at the time of signing/witnessing the documents?

Any witnessing of documents must occur in ‘real time’ via an audio-visual link, and the person witnessing the document must be able to clearly see the face and the hand of the person executing the document.

The witness must be reasonably satisfied that the document that the witness signs is the same, or a copy of, the signed document.

How are documents to be witnessed?

The Regulation provides that documents are to be witnessed by one of the following methods:

  1. By witnessing the original or counterpart of the document which has been executed; or
  2. By witnessing an electronic copy of the original signed document.

The witness must sign the documents as soon as practicable after witnessing the execution of the document.  Further, the witness must endorse the document by specifying that the document was witnessed in accordance with the Regulation.

These temporary witnessing laws provide much needed flexibility to assist in progressing and finalising legal matters.  They are also a call to action during the COVID-19 restrictions to have legal documents settled in a safe and convenient manner.

This article is intended to be general advice only. We always recommend that you obtain advices in relation to your personal circumstances.

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