Electronic witnessing for estate planning documents in Victoria, Queensland and New South Wales

In brief - in response to COVID-19 restrictions, state governments have implemented legislation that allows certain documents to be executed electronically and/or witnessed remotely. This article examines the current laws in place in Victoria, Queensland and New South Wales

Before COVID-19, estate planning documents required face-to-face witnessing to take place, with documents to be signed and witnessed with handwritten, 'wet-ink' signatures, and with witnesses physically-present. In response to COVID-19, states have introduced measures that allow electronic means of execution for certain documents and remote witnessing via audio-visual link. 

Victoria has introduced legislation that will permanently enable electronic execution and remote witnessing of certain documents. In Queensland, measures permitting electronic execution and remote witnessing are set to expire on 30 September 2021 (subject to some exceptions, which have already expired), and in New South Wales, e-witnessing measures are set to expire on 1 January 2022. 

Electronic execution and split execution of documents for corporations under section 127 of the Corporations Act 2001 (Cth) is expressly permitted after the passing of the Treasury Laws Amendment (2021 Measures No.1) Bill 2021 on 10 August 2021. However, these temporary rules for corporations will automatically expire on 31 March 2022. To read more about the changes to the Corporations Act, read our article: Electronic execution of documents - implications, tips and outstanding issues

Some documents which may be electronically executed (i.e. signed with an electronic signature) and/or electronically witnessed include: 

• Wills; 
• Powers of Attorney; 
• Statutory Declarations;
• Affidavits;
• Deeds, contracts, agreements; and
• Mortgages.

Each state has its own rules as to which documents can be electronically executed and/or remotely witnessed. It is important to note that just because a document can be electronically signed or executed in one state, it does not mean that it can be signed or executed using an electronic signature in another state. Furthermore, for some documents, although electronic witnessing is permitted via audio-visual link, it does not mean it is able to be signed by the principal using an electronic signature. 

The laws in place for Victoria, New South Wales and Queensland are explored below. 

Victoria permanently allows electronic execution of documents 

Victoria has now passed legislation that permanently allows the electronic execution and witnessing of certain documents under the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (VIC). 

The following instances of electronic execution and witnessing are generally now permitted in Victoria: 

• Wills can be executed electronically (i.e. signed with an electronic signature) and witnessed by audio-visual link;
• Both General Powers of Attorney and Enduring Powers of Attorney can be executed electronically and witnessed remotely by audio-visual link;
• Signatures can be witnessed via audio-visual link;
• Deeds can be signed and executed in electronic form, and witnessed remotely via audio-visual link by individuals;
• Mortgages can be executed electronically and witnessed remotely (subject to other laws of Victoria); 
• Verification of identity can occur via an audio-visual link; and
• Affidavits and Statutory Declarations can be made or taken electronically and remotely by audio-visual link. 

In some instances, there are additional requirements to satisfy in order to rely on the electronic witnessing or execution provisions, such as 'special witness' and same-day witnessing or execution requirements in the case of Powers of Attorney and Wills.

A 'special witness' means someone who is either an Australian legal practitioner or a justice of the peace. Those who wish to rely on the electronic witnessing provisions should take care to ensure all legislative requirements are satisfied. 

Queensland introduces temporary measures to allow electronic execution of documents

The temporary measures introduced by Queensland that allow electronic witnessing and execution of particular documents will expire on 30 September 2021. 

In Queensland, the following documents may be executed electronically: 

• Deeds, contracts and agreements by individuals (noting deeds can be signed in counterpart);
• General Powers of Attorney;
• Mortgages; 
• Affidavits; and 
• Statutory declarations. 

However, in Queensland, a document may only be witnessed by audio-visual link if the person is a 'special witness' for the document under the Justice Legislation (COVID-19 Emergency Response - Documents and Oaths) Regulation 2020 (QLD). 

A 'special witness' includes an Australian legal practitioner, justice of the peace or commissioner for declarations, and a notary public. 

The following documents can be witnessed via audio-visual link if witnessed by a 'special witness':

• Signatures on documents; 
• Deeds, contracts, or agreements;
• General Powers of Attorney;
• Affidavits;
• Oaths and affirmations; and 
• Statutory declarations. 

Unlike Victoria and New South Wales, remote witnessing via audio-visual link is no longer permitted in Queensland for:

• Wills; 
• Enduring Powers of Attorney; and 
• Advance Health Directives.

The temporary provisions permitting the electronic witnessing of Wills, Enduring Powers of Attorney and Advance Health Directives were repealed. This means that from 1 July 2021, they must be signed with handwritten, 'wet-ink' signatures and be witnessed by physically-present witnesses. 

Electronic execution of documents in New South Wales 

In New South Wales, amendments were made to the Electronic Transactions Act 2000 (NSW) which enables electronic witnessing and execution. These amendments are set to expire on 1 January 2022. 

The following instances of electronic execution and witnessing are now permitted in New South Wales: 

• Witnessing signatures via audio-visual link; 
• Electronic execution and remote witnessing of deeds, contracts and agreements via audio-visual link;
• General Powers of Attorney and Enduring Powers of Attorney may be witnessed remotely by audio-visual link;
• Verification of identity via audio-visual link;
• Wills can be witnessed remotely by audio visual link;
• Affidavits, annexures and exhibits to affidavits can be taken and witnessed by audio-visual link; and
• Statutory declarations can be witnessed remotely by audio-visual link. 

Although certain documents can be executed and/or witnessed electronically in these states, care should be taken to ensure that any additional requirements that come with executing or witnessing documents via audio-visual link are satisfied.