23 April 2020
Given the nature of a pandemic, this is a particular problem for estate planning documents including Wills, Powers of Attorney and Advance Care Directives/Enduring Guardians (or their state-based equivalents). Some Australian jurisdictions are, however, taking steps to address the issue.
New South Wales
The New South Wales Government has enacted the Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 to temporarily facilitate the witnessing of documents by audio-visual link.
The Regulation applies to (at least):
- Wills;
- Powers of Attorney including Enduring Powers of Attorney;
- Deeds or Agreements;
- Enduring Guardianship Appointments;
- Affidavits; and
- Statutory Declarations.
The Regulation allows a person to witnesses a document by audio-visual link as long as they observe the signing of the document in real time, and then sign the document, or a copy of the document themselves.
The witness is required to endorse the document (or copy document) by specifying how the document was witnessed, and that the document was witnessed in accordance with the Regulation. For example:
“I, [name] attest that this document was signed in counterpart and witnessed by me by audio-visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.
The witness must also be “reasonably satisfied” that the document which the person signed is the same document that the witness signed.
The Regulation contemplates that the witness could either sign and endorse a counterpart of the document, or that the person could scan and send to the witness a copy of the signed document electronically, which the witness could then countersign.
Which method is more appropriate will depend on the circumstances and document being signed. For a Will for example, the second method is likely to be more preferable so all signatures appear on the same document.
The Regulation also allows matters incidental to witnessing documents (such as verifying a person’s identity) to occur by video link.
Queensland
The Queensland Government passed the COVID-19 Emergency Response Bill 2020 on 22 April 2020, which contemplates that regulations will be made in relation to the requirements under current legislation for the physical attendance of witnesses for certain documents.
At the date of this article, those regulations have not yet been published. However, it is anticipated from section 9 of the Bill that those regulations will cover similar matters to those covered in New South Wales, including the witnessing of signatures, certification of matters by witnesses and the verification of identity of persons signing documents.
Likewise, the Cabinet Explanatory Notes suggest that the regulations will apply to Wills, Powers of Attorney including Enduring Powers of Attorney, Advance Health Directives, Statutory Declarations and Deeds and will make use of “ a range of communication technologies”.
It should also be noted that on 22 April 2020, the Supreme Court of Queensland published Practice Direction Number 10 of 2020, which is pertinent to the witnessing of Wills by audio-visual link.
Subject to the conditions below, the Practice Direction empowers a Registrar of the Court with the Court’s power to dispense with the requirement under the Succession Act 1981 (QLD) that to execute a valid Will, the witnesses must physically be in the presence of a testator when they sign their Will.
For the Registrar to dispense with that requirement, satisfactory evidence must be produced that:
- the will was drafted by a solicitor, or a solicitor is one of the witnesses or person supervising the execution of the will;
- the deceased intended the document to take immediate effect as their Will (or as an alteration or revocation of their Will);
- the testator executed the Will in the presence of at least one witness by way of audio-visual link;
- the witness(es) were able to identify the document executed; and
- the reasons for the testator being unable to execute the will in the physical presence of two witnesses in the usual way was due to COVID-19.
The Practice Direction applies to Wills executed between 1 March 2020 and 30 September 2020.
Victoria
The COVID-19 Omnibus (Emergency Measures) Bill 2020 is being debated by the Victorian Parliament at the date of this article.
It contemplates the making of regulations in a similar fashion to Queensland.
South Australia
At this stage, South Australia has not put in place any measures to allow for the witnessing of documents by audio-visual link, or other substantial amendments to current requirements in that regard.
To the contrary, the COVID-19 Emergency Response (Section 17) Regulations 2020 (SA) specifically provide that while meetings which are otherwise required to occur in person may occur by audio-visual means, this does not apply to physical witnessing requirements for signing documents.
It should be noted though that the COVID-19 Emergency Response (Section 16) Regulations 2020 (SA) has increased the category of persons authorised to witness a statutory declaration to the broader list of persons defined under Commonwealth regulations.
Tasmania
The COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 commenced on 27 March 2020, however it does not appear to contemplate regulations as wide as those in Victoria and Queensland. It provides that the Minister may by notice declare that despite any requirement to the contrary, signatures or documents may be taken or evidenced by electronic means specified in the notice.
It is unclear whether this could apply to a declaration permitting the audio-visual witnessing of documents. The only notice declared by the Minister at the date of this article is respect of the Local Government Act 1993, so the current requirements for witnessing of wills and other testamentary documents appear unchanged.
Western Australia, Northern Territory and Australian Capital Territory
At the date of this article, neither WA, NT nor ACT have put in place any measures to allow for the witnessing of documents by audio-visual link or any similar measures.
