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Electronic Signatures During Covid-19

by | Jun 1, 2020 | Wills & Estates

On 12 May 2020 new Victorian Regulations were made in regard to the execution and witnessing of documents during the COVID-19 pandemic.  In order to ease the logistical challenges with signing documents in these times, the Victorian government introduced the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (“the Regulations”) which form part of the COVID-19 Omnibus (Emergency Measures) Act 2020

By introducing these Regulations, there is a modification of existing laws (in particular, the Electronic Transactions (Victoria) Act 2000, Oaths and Affirmations Act 2018, Powers of Attorney Act 2014 and Wills Act 1997) to enable the temporary use of electronic signatures and the witnessing of documents by an audio-visual link. 

Documents that can now be witnessed electronically are:

  • Affidavits
  • Deeds and mortgages
  • Statutory Declarations
  • Enduring and Non-Enduring Powers of Attorneys; and
  • Wills, Codicils and other testamentary documents. 

Key Changes

The requirements under the Regulations are very specific in nature, in particular when dealing with Statutory Declarations, Powers of Attorney and Wills and therefore where possible, signing in person should be your preferred option. 

Affidavits

The Regulations provide that:

  • deponents and witnesses can sign or initial a document electronically;
  • the witnessing of affidavits can be completed over the phone or by using video conferencing technology;
  • scanned hard copies or electronic copies can be used instead of the original copy; and
  • there must be an additional statement added to the Affidavit such that it is witnessed in accordance with the Regulations.

Deeds and Mortgages

The Regulations provide that:

  • the person who will receive the document must give consent to the execution of the document by electronic signature;
  • each signatory who uses an electronic signature must include a statement indicating that the document was electronically signed in accordance with the Regulations;
  • each witness must include a statement indicating that the document was witnessed using an audio-visual link in accordance with the Regulations; and
  • if signatures are applied to different copies of a document, each signatory must receive a copy of each document that has a signature on it.

Statutory Declarations

The Regulations provide that:

  • statutory declarations can be made electronically and/or remotely; and
  • all requirements must be completed on the same day; and
  • both the declarant and the witness are to fulfill the requirements under the Oaths and Affirmations Act 2018.

Powers of Attorney

The Regulations provide that the witnesses to the document are required to fulfill all obligations under the Powers of Attorney Act 2014.  For valid execution, the following steps must be completed on the same day:

  • the principal (or directed signer) signs the document with the witnesses observing the signing either electronically or on hard copy;
  • a copy of the document be provided to the first witness who: 
    • signs it electronically or signs a printed hard copy;
    • writes a statement that the document was witnessed via an audio-visual link in accordance with the Regulations; and
    • provides a copy to the remaining witness who must also carry out the above steps; and
  • the copy of the document signed by the witnesses is then returned to the principal who must then sign as to it being a true and correct copy of the document signed by them and the requirements of the Regulations have been met. 

It must be noted that the Regulations do not provide for electronically signing of Advanced Care Directives and appointments of Medical Treatment Decision-Makers made under the Medical Treatment Planning and Decisions Act 2016.

Wills, Codicils And Other Testamentary Documents

The Regulations allow for these documents to be electronically signed and witnessed if each witness and the willmaker are connected via the same audio-visual link.

Each witness must still meet the obligations under the Wills Act 1997 and for electronically execution to be valid, the following steps need to be completed on the same day:

  • the willmaker (or directed signer) signs the document with the witnesses observing the signing either electronically or on hard copy;
  • a copy of the document be provided to the first witness who: 
    • signs it electronically or signs a printed hard copy;
    • writes a statement that the document was witnessed via an audio-visual link in accordance with the Regulations; and
    • provides a copy to the remaining witness who must also carry out the above steps; and
  • the copy of the document signed by the witnesses is then returned to the willmaker who must then sign as to it being a true and correct copy of the document signed by them and the requirements of the Regulations have been met. 

The result will be that you are provided with one copy of the document on which all of the signatures will appear.  This copy is the Will.

The above steps are also completed for a Will to be altered or revoked. 

What is Considered an Audio-Visual Link?

The Regulations do not define this specifically however provides that it includes “facilities (including closed-circuit television) that enable audio and visual communication between persons at different places”.

How Does This Affect Our Clients?

During this pandemic Nevett Ford have temporarily closed our physical office and have been supporting our clients whilst working remotely.  We understand that many clients, as restrictions are eased will still feel uneasy about executing and witnessing documents face-to-face and we have introduced measures to assist our clients with signing documents electronically in accordance with these Regulations.