Statutory Declaration

Coronavirus: Remote witnessing of legal documents

On 22 April 2020, the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) came into effect.

The effect of the Regulation is that the signing of legal documents in New South Wales such as Wills, Powers of Attorney, Deeds, Agreements, Appointments of Enduring Guardians, Affidavits and Statutory Declarations) can be witnessed by audio visual link, rather than having to be physically present, as is normally the case – that is the law (during the COVID-19 pandemic) now allows the remote witnessing of legal documents.

Some documents have other additional requirements, like Wills which require 2 witnesses, not just one, as is provided for in s.6(1)(c) of the Succession Act 2006 (NSW).

Audio visual link includes Zoom, WhatsApp, Skype, HouseParty, FaceTime and the like.

The witness must sign the document either:

  1. by signing a counterpart of the document as soon as practicable after witnessing the signing of the document; or
  2. if the signatory scans and sends a copy of the signed document electronically, the witness may countersign the document as soon as practicable after witnessing the signing of the document.

The witness must endorse the document, or the copy of the document, with a statement that specifies the method used to witness the signing and that the document was witnessed in accordance with the Electronic Transactions Regulation 2017.

All copies of the document should be stored together so they can be read as the one document.

The Regulations do not change what documents may or may not be executed electronically in NSW – only how documents may be witnessed and attested.  The Regulations also do not affect the laws or requirements of any other jurisdiction, including the Commonwealth (such as company execution of documents under the Corporations Act 2001 (Cth).

Under the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), the Regulation will operate for a maximum period of 6 months from 22 April 2020.

Similar regulations are in place in the other States and Territories, such as Queensland’s Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 (Qld).

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus, if you had previously held off arranging documents such as for your estate planning due to not wanting to attend our office physically due to social distancing concerns or if you need to discuss how to best to arrange signing of documents under the Regulation, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice.

Please contact McKillop Legal to discuss your legal concerns or objectives.

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Justices of the Peace

A Justice of the Peace (JP) can perform certain functions like witnessing Statutory Declarations or Affidavits and certifying copies of documents.

The NSW Department of Justice has updated the Justice of the Peace Handbook for JPs in NSW. The handbook contains guidance for JPs, tips to avoid common risks and answers to frequently asked questions.

Witnessing a Stat Dec or Affidavit

When witnessing a NSW Statutory Declaration or Affidavit, the JP must see that person’s face as well as confirm that they have known the person for at least 12 months or sight approved identification documents. The current approved versions of Statutory Declaration and Affidavits contain amended wording in this regard but it should be added if it is not there.

If the person refuses to remove any face covering, the JP must refuse to witness the execution of the document unless there is special justification (which means a legitimate medical reason, but does not include religious beliefs or cultural practices).

Approved identification documents include drivers licences, Medicare card, birth certificate, passport (so long as they have not expired/been cancelled). Expired passports are acceptable so long as they did not expire more than 2 years ago.

Quick JP facts

  • JPs may not charge or receive any benefit for providing JP services.
  • A JP is not authorized to witness an Enduring Power of Attorney.
  • JPS cannot conduct a marriage unless they are also a licensed Marriage Celebrant.
  • The Jury Act 1977 does not provide an exemption for JPs from jury duty.
  • A JP May not provide legal advice unless they are also a registered Australian Legal Practitioner.
  • A JP must not unreasonably refuse to provide JP services.

The Code of Conduct for Justices of the Peace was reviewed in 2014 and updated by the Justices of the Peace Regulation 2014.