Estate Group update: Electronic witnessing during COVID-19 — wills, powers of attorney, and other documents can now be witnessed remotely

May 13, 2020

On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 came into force in Victoria, implementing necessary changes to a variety of legislation to allow the remote witnessing of documents in Victoria by audio-visual link.

Similar legislation is already in force in other states.

Before the Regulations came into force, witnesses were required to physically observe a signatory affix their signature, and then sign the same copy of the original document. Multiple witnesses are required for wills and powers of attorney. During the COVID-19 crisis, social distancing measures have made these requirements unworkable.

Crucially, the new legislation now allows for wills, powers of attorney, affidavits and statutory declarations to be witnessed by audio-visual link subject to the requirements of the Regulations.

The requirements differ depending on the type of document but broadly include that the witness(es) must:

  • observe the person signing the document, meaning that the witness must observe the act of signing itself. Where two witnesses are required, they must both be present in the same audio-visual link;
  • confirm they witnessed the signature by signing a copy of the document scanned or transmitted to the witness and counter-signing that document on the same day it was signed by the signatory; and
  • include a statement specifying the method used to witness the document and that it was witnessed in accordance with the Regulations.

Certain documents can now also be signed electronically, including statutory declarations, affidavits, and deeds and mortgages under the Electronic Transactions (Victoria) Act 2000.

Strict adherence to the Regulations will be necessary to ensure that the documents are valid and binding in accordance with these new requirements. 

More information

For more information or advice in relation to these Regulations or your estate plan generally, please contact a member of our Estate Group below.

Sam Frey,
Principal Lawyer and 
Head of Estate Group
+61 3 8600 8885
E sfrey@kcllaw.com.au
Jennifer Maher, 
Principal Lawyer and
Accredited Wills and Estates Specialist
+61 3 8600 0710
E jmaher@kcllaw.com.au
Paul Beasant,
Special Counsel
+61 3 8600 8817
E pbeasant@kcllaw.com.au
Hayley Hunter,
Senior Associate
+61 3 8600 8806
E hhunter@kcllaw.com.au
Ainsleigh Valentine,
Associate
+61 3 8600 8826
E avalentine@kcllaw.com.au
Nicole Fedyszyn,
Lawyer
+61 3 8600 8824
E nfedyszyn@kcllaw.com.au

Author

This Estate Group update was authored by Hayley Hunter, Senior Associate.

Note: This update is a guide only and is not intended to constitute legal advice.

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