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Back to "Wills and Estates Newsletter - September 2020"

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Witnessing Documents in the COVID-19 Age

Background

On 22 April 2020 Attorney General Mark Speakman announced a new temporary regulation, made under section 17 of the Electronic Transactions Act. Schedule 1 of the Electronic Transactions Regulation 2017 sets out that the following documents can now be witnessed via AVL:

  1. A will;
  2. A power of attorney or an enduring power of attorney;
  3. A deed or agreement;
  4. An enduring guardianship appointment;
  5. An affidavit, including an annexure or exhibit to the affidavit; and
  6. A statutory declaration.

Practice

In practice, this creates a slightly more complicated process for the witnessing of documents. While it is preferable to meet with clients to witness their documents while exercising appropriate physical distancing requirements, the Regulations make it possible for clients in isolation or in quarantine, to sign their legal documents over AVL. If witnessing or having documents witnessed over AVL it is important that the following takes place:

  1. The witness must see the signatory signing the document in real time.
  2. The witness must sign the document or a copy of it, as evidence that they have witnessed the signature: either a scanned copy of the original document or a counterpart.
  3. The witness must be reasonably satisfied that the document they sign is materially the same as that signed by the signatory
  4. The witness must endorse the document with a statement that specifies how the document was witnessed and that it was done in accordance with the regulation.

If the document being signed and witnessed is a Will it is preferable for the Will maker to invite two witnesses to be present with them on the AVL and the solicitor guide the Will maker and witnesses through the signing process: that avoids the need for counterparts of the Will. It is important if you are having any documents witnessed under the Regulations, particularly any documents that deal with your estate or decision making power, that the above regulations are strictly complied with to ensure that the validity of those documents are maintained.

This is a temporary regulation, and although it arguably creates an environment where documents can be witnessed with ease, will expire on 21 October 2020, unless further regulated. It remains our preference to meet with clients in person, if they are well, and exercise appropriate physical distancing requirements to witness legal documents.

Visiting Carroll & O’Dea Offices

Your health and safety, and the health and safety of our staff and others visiting our office and building, is very important to us.  We will need to ask you some questions ahead of your upcoming visit to our office to ensure you are well on the day of your appointment at our office.  We have made available to our staff and others visiting our office hand sanitisers, a registry list for ‘contact tracing purposes’ if that is ever needed, and face masks and gloves.  We have installed ‘hygiene screens’ in our meeting rooms and set ‘maximum numbers for each meeting room as additional precautionary measures. Otherwise contact us to meet with us remotely by AVL or telephone.

Joshua Dale, Partner

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