ByLawyers News and Updates

Remote execution of powers – VIC

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Victoria has introduced a permanent procedure for remote execution of powers of attorney, revocations and supportive attorney appointments.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The procedure requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The principal to sign – or direct someone to sign the instrument on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness;
  5. The document to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the document is the same document they witnessed the principal sign;
    • certify that they witnessed the document by audio visual link in accordance with the procedure;
    • sign the document, with the principal and other witnesses seeing them to do via audio visual link; and
    • in the case of the special witness, certify the document was signed and witnessed in accordance with the procedure, certify that they are a special witness and the type of special witness they are and note whether there is a recording of the process.

The By Lawyers Powers and advance care directives (Vic) guide has been updated accordingly for the new procedures on remote execution of powers. For LEAP users Power of Attorney forms have been updated as noted in the LEAP forms blog.

Remote execution of wills – VIC

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Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

Electronic Transactions – NSW

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Schedule 1 to the Electronic Transactions Regulation 2017 (NSW) came into operation on 22 April 2020 . It allows for witnessing of documents by audio visual link in New South Wales.

This is a practical step by NSW parliament. It allows wills, powers of attorney, deeds and agreements, enduring guardianship appointments, affidavits and statutory declarations to be witnessed through audio visual means. Formats such as Zoom, Skype or Microsoft Teams, which integrates with LEAP, can be used.

Practitioners can send a document to a client by email, if the client has printing facilities, or by post. A meeting can then be arranged via any audio visual format to witness the client signing the document.

Under the regulation the practitioner witness must:

  • Observe the client sign the document in real time – this may involve ensuring that the practitioner can view the document on screen as the signature is made;
  • Sign the document or a copy of the document themselves;
  • Be reasonably satisfied that the document that they sign is the same document, or a copy of the document, signed by the client; and
  • Endorse the document, or copy, with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the regulation.

The following wording is suggested for the endorsement:

This 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.

The regulation allows a witness to sign a counterpart of the document, or have the client scan and email the signed document back to the practitioner, who may then print and witness the copy. Of course, the client may also post the original back to the practitioner, who may then sign the original document on receipt.

The regulation also allows for swearing or affirming the contents of an affidavit by audio visual link.

This is a temporary, COVID-19 related measure. Schedule 1 expires 6 months from the date of commencement, being 22 October 2020.

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