Electronic Signatures – Are They Real?

Can I electronically sign or witness this estate planning document?

This is a question often asked, and it is a fair one given the significant role technology now plays in today’s world. During the “unprecedented times” of 2020 we were given a taste of electronically signing various estate planning documents following the passing of emergency legislation in many Australian States in response to the Covid lockdowns. Where people were unable to meet in person to witness the signing of their legal documents, it became necessary for each State to legislate to permit electronic signing and witnessing for a variety of documents. The pieces of Emergency Legislation were largely implemented with an expiration date and they only applied for a limited period of time.

Some States however have seen to implementing amendments to the current legislation in order to make permanent the use of electronic witnessing and in some cases the signing of estate planning documents. Which types of documents can be electronically signed and /or witnessed and how the documents are witnessed was dependent upon each State’s legislation.

Western Australia, Tasmania, South Australia, the Australian Capital Territory and the Northern Territory have not introduced any permanent legislation relating to electronic signing or witnessing of estate planning documents following the Covid Pandemic.

In South Australia, the COVID-19 Emergency Response (Section 17) Regulations 2020 became obsolete on 9 September 2021. In Tasmania, whilst still current, the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (No.2) does not provide for the remote witnessing of estate planning documents. In the ACT the COVID-19 Emergency Response Act 2020 (ACT) permitted the witnessing by audio visual link of the signing of Power of Attorneys and Enduring Powers of Attorney, health directions, Wills and affidavits, however this expired on 31 December 2022. Finally in the Northern Territory documents which require a witness to be physically proximate cannot be signed electronically. This was not changed by emergency legislation.

Victoria, Queensland and New South Wales, however, have each retained or introduced legislation providing for the electronic signing and witnessing for various estate planning documents.

Western Australia

In WA the COVID-19 Response and Economic Recovery Omnibus Act 2020 allowed for the remote witnessing via audio visual link for the signing of affidavits and statutory declarations only. The COVID-19 Response and Economic Recovery Omnibus Act 2020 Postponement Proclamation 2021 (WA) extended Division 4 part 2 of the Act to 31 December 2022, however this has since expired and WA has not introduced any additional legislation regarding the remote witnessing of affidavits, statutory declarations or estate planning documents.

Victoria

In Victoria the Powers of Attorney Act 2014 section 5A outlines a remote witnessing procedure to allow a power of attorney to be electronically signed and witnessed with all parties in separate spaces, via audio visual link, however the parties must all be physically located in Victoria at the time of signing and witnessing.

The Wills Act 1997 has also been amended to add the new subsection 8A-8D which outlines a remote witnessing procedure for the execution and alteration of a Will, subject to stringent requirements. Wills may be electronically signed and witnessed by audio visual link, despite the parties being located in differing states at the time of signing.

In addition, an affidavit may be signed by electronic means as well as be sworn and affirmed by audio visual link under the Oaths and Affirmations Act 2018. A statutory declaration may also be signed by electronic means and witnessed by audio visual link.

It remains however that you cannot certify a true copy of an original document or certify a person’s identity online. This must be completed in-person.

Queensland

In Queensland the Justice and Other Legislation Amendment Act 2021 came into effect on 30 April 2022 making parts of the emergency legislation introduced in Queensland permanent. The documents which can now be electronically signed and witnessed via audio visual link are:

1. General Power of Attorneys for businesses can be signed by electronic signature, in counterpart and without a witness.
2. Affidavits and statutory declarations can be signed electronically in counterparts and can be witnessed by a special witness who may be present via audio-visual link.
3. Deeds can be signed using an electronic signature in counterparts without a witness.

The changes however do not apply to the signing and witnessing of Wills or an enduring document under the Powers of Attorney Act 1998.

New South Wales

In New South Wales the Electronic Transactions Amendment (Remote Witnessing) Act 2021 came into effect in November 2021 and permits the witnessing of the following documents by audio-visual link, even where the signatory, the witness or both are outside of the jurisdiction, provided the documents are made or are required to be signed under an act or law of NSW or were the governing laws for that document are the NSW laws:

1. Wills;
2. A power of attorney or an enduring power of attorney;
3. A deed or agreement;
4. An enduring guardianship appointment;
5. An affidavit, including an exhibit or annexure to the affidavit; and
6. A statutory declaration.

Whilst electronic witnessing is allowed, Wills, powers of attorney and statutory declarations cannot be electronically signed in NSW.

Australia Wide

The Corporations Amendment (Meetings and Documents) Act 2022 came into effect on 23 February 2022 for the execution of documents and on 1 April 2022 for meetings held and documents sent. These amendments include, among others, that:

1. Deeds and some additional company and meeting related documents may be signed electronically;
2. Signatories may sign documents and deeds by differing methods in counterparts via any technology; and
3. Parties to sign a document can sign without signing in the same form and without using the same method.

The implementation of a statutory regime for electronic signatures provides an efficient alternative for parties to a document and those witnessing the signature of others. It can save much time, cost and anxiety in having to travel to another location to add a wet (i.e. real) signature to a document. This in turn can contribute to the more efficient execution of important documents in commercial and other transactions.

However, it remains important to be vigilant when using and relying on modern technology when it comes to significant legal and commercial documents especially in the estate planning space. This may have particular importance when it comes to matters such as elder abuse and questions relating to testamentary capacity. If you intend to remotely witness or electronically sign a provided for estate planning document, it is wise to carefully follow the requirements under the applicable legislative instrument to ensure the correct signing and /or witnessing of the document, as well as to record detailed file notes as to the circumstances surrounding the signing and / or witnessing of the document.

If you wish to find out how Bowen Buchbinder Vilensky can be of assistance to you with your estate planning please feel free to contact our office.