COVID pushed many industries to explore new technology and methods of working. For the legal industry, the biggest changes included electronic signatures and remote witnessing of legal documents. The RMB Business & Commercial Transactions division explains that the changes have become permanent.
After an 18-month trial period, the passing of the Electronic Transactions Amendment (Remoting Witnessing) Act 2021 (NSW) has made the temporary provisions allowing remote witnessing permanent for most legal documents, including wills, statutory declarations and affidavits.
Legal practitioners are required to take a few extra steps to ensure a document is correctly witnessed, including:
- The witness must observe the signatory signing the document in real time. This is usually achieved through audio visual link including Microsoft Teams, Zoom and Facetime.
- The practitioner must be satisfied that the document that the signatory is signing is the same document that is signed by the witness. This step can be taken by the signatory signing the document and sending it to the witness to countersign. Alternatively, the signatory and witness can review each provision of the document during the online conference and sign the document in counterpart.
- Wording needs to be included in the signature block that states the document was witnessed remotely in accordance with the Electronic Transactions Amendment (Remoting Witnessing) Act 2021 (NSW).
The availability of remote witnessing effectively allowed legal practitioners and clients to adapt to constraints introduced to slow the spread of COVID-19. However, as with any change in long-standing practice, there are pitfalls that both signatories and witnesses need to be aware of.
A significant concern is the potential for a signatory to be subject to undue influence at the time of signing the document. As the witness and signatory are in separate rooms, there is a possibility that a third party could be in the room with the signatory and out of view of the camera.
A way to overcome this issue may be to seek the signatories’ consent to record the meeting and storing the meeting on an electronic file for use if the signature is challenged. Further, practitioners must ensure they take steps to confirm the mental capacity and identity of the signatory.
Despite the concerns with remote witnessing, the permanent adoption of the practice is a positive move that will allow lawyers to assist people in regional and remote areas in both a time and cost-effective manner.
If you require any further information about electronic signatures and remote witnessing of legal documents, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.