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.