Almost a year ago, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Omnibus Act) and the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations (Regulations) introduced the ability for certain documents to be signed electronically and witnessed remotely in Victoria.
The relevant part of the Omnibus Act will be automatically repealed on 26 April 2021, which by extension will revoke the Regulations.
As of 26 April 2021, the Justice Legislation Amendment (System Enhancement and Other Matters) Act 2021 (Amendment Act) provides Victorians with the permanent ability to execute certain documents electronically, before witnesses present remotely (that is, by ‘audio visual link’).
Any program or application that permits real-time video conferencing (that is, audio and visual communication between people in different locations) would be considered an audio visual link for this purpose.
However, the process to execute and witness documents remotely is not ‘one size fits all’: there is a distinct process and set of requirements for each type of document permitted to be executed under the new framework.
The new rules for remote execution of wills, enduring powers of attorney, affidavits and statutory declarations introduce additional requirements that do not apply when the same documents are executed in the traditional manner, or under the temporary remote execution provisions in place during the last year.
Care must be taken to ensure that the relevant process is strictly followed, to ensure documents are validly executed.
Consistent with the existing requirements of the Wills Act 1997 (Wills Act), a will executed remotely must still be signed by the testator in the presence of two witnesses.
The parties must all be in each other’s presence, either by audio visual link and/or physical presence. A testator could validly sign their will before one witness present in person, and one witness present by audio visual link.
Importantly, where the will is to be signed and witnessed remotely, one of the witnesses must now be a ‘special witness’ (such as an Australian legal practitioner, justice of the peace or member of a prescribed class).
The witnesses must clearly see the signature of the testator (or a person at their direction) being made. The testator must also able to see each witness’s signature being made. Arguably, this means that:
- It is not sufficient for the testator and any witnesses present by audio visual link to share their screens over a video-conferencing platform, while signing electronically.
- If the will is being signed electronically, each party should sign the will on a separate device to that which they are using for the videoconference. This would allow the testator and each witness to clearly see the other parties “making” their signature.
- Where a will is being wet signed (that is, a paper copy of the will is being signed), the testator and each witness should be in full view of the camera at all times to enable the other parties to observe each person writing their signature.
Once the testator has signed, the will must be transmitted by electronic means to any remote witness, who signs and affixes a statement to the will that they witnessed the will by audio visual link in accordance with the remote execution procedure. If the will is being wet signed by any party, it will need to be scanned and a copy of the signed document transmitted to the next witness, so they can:
- Print and wet sign (and scan and email to the next witness, if applicable); or
- Sign electronically using an appropriate program.
The special witness must sign last, as they are responsible for checking the will for compliance with the remote execution procedure. They must then, after signing, ensure there is a statement on the will certifying that:
- The will was signed and witnessed in accordance with the remote execution procedure;
- That they are a special witness (and the type of special witness they are); and
- Whether an audio visual recording of the signing or witnessing of the will was made.
The document which has been checked and signed by the special witness is the valid will. A will cannot be signed in counterparts – even where the testator and both witnesses are in different locations. To avoid future confusion, if the testator and/or the first witness are wet signing a copy of the will, we consider it would be best practice to immediately destroy any such partially executed document.
All elements of the remote execution process must be carried out on the same day, with the testator and witnesses physically in Victoria.
Enduring Powers of Attorney
The remote witnessing procedure for enduring powers of attorney is similar to that for wills, in that:
- Each witness must be able to clearly see the signature of the principal (or person signing at their direction) being made. Interestingly:
- There is no equivalent requirement for the principal to ‘clearly’ see the witnesses’ signatures being made. Each witness is simply required to sign and date the enduring power of attorney ‘in the presence of’ the principal and other witness/es by audio visual link).
- It may be therefore be sufficient for a remote witness to sign a document electronically on the same device they are using for the videoconference (that is, by sharing their screen). However, best practice would be to ensure that the principal can likewise observe each witness affixing their signature.
- If a person directs someone to sign the enduring power of attorney on their behalf, all witnesses must see and hear this direction to the substitute signatory.
- On signing and dating the document, each witness attending by audio visual link should sign and date the document, and affix a statement to the document certifying that they witnessed it by audio visual link (in accordance with the remote witnessing procedure).
- One of the witnesses must be a ‘special witness’, who signs last and checks the enduring power of attorney for compliance with the remote witnessing procedure. They must then certify that:
- It was signed and witnessed in accordance with the remote execution procedure set out in section 5A of the Powers of Attorney Act 2014; and
- That they are a special witness (and what type); and
- Whether an audio visual recording of the signing or witnessing of the enduring power of attorney was made.
- All elements of the signing process must take place on the same day, with the person making the enduring power of attorney and the witnesses physically in Victoria.
The document which has been checked and signed by the special witness, and contains the special witness statement, is the valid enduring power of attorney.
An attorney (other than a trustee company) may similarly accept their appointment by using the remote witnessing procedure. However, there is no need for the witness to the acceptance of appointment to be a special witness.
Affidavits may now be signed or initially electronically, and witnessed over audio visual link. All existing requirements for taking affidavits under the Oaths and Affirmations Act 2018 continue to apply.
Where an affidavit has been witnessed remotely, the jurat must also set out the following:
- The affidavit has been signed and sworn or affirmed by audio visual link; and
- Whether the authorised witness has used a scanned or electronic copy of the affidavit in completing the jurat.
A statutory declaration may be signed or initialled electronically, and witnessed via audio visual link.
A statutory declaration signed or witnessed under the new remote execution procedure must contain a statement specifying the manner in which it was signed or witnessed, and whether a scanned or electronic copy of the statutory declaration has been used. This statement may be pre-filled on the statutory declaration form.
Executing an affidavit or statutory declaration remotely does not remove the need for the deponent/declarant to state the oath, affirmation or declaration aloud.
What’s not included
The Amendment Act does not provide a mechanism for the electronic signing and remote witnessing of international wills, advance care directives or appointments of medical treatment decision maker.
These documents must continue to be executed on paper, in the physical presence of the required witnesses.
The above remote signing and witnessing procedures do not negate or replace other requirements under the relevant Acts for the respective documents to be valid.
While the introduction of a permanent mechanism for the above documents to be signed and witnessed remotely is to be applauded, the process is not straightforward. If one of the requirements is not met, the relevant document would not be valid. If the person cannot re-execute the document, the consequences could include:
- An invalidly executed will could potentially be admitted to probate as an ‘informal will’ under section 9 of the Wills Act. This process is not without its own issues and complications, and can potentially require an expensive Court application. If the requirements for an informal will cannot be established, the person’s assets may instead end up being distributed under an earlier will or the intestacy framework.
- In the case of an enduring power of attorney, the person would be left either without a valid enduring power of attorney or with an earlier, outdated document in force. As a result, a VCAT application may be necessary for an appropriate person to be authorised to deal with the person’s financial or personal affairs.
Consideration should therefore be given to how a document should be executed, and whether the remote execution procedure is appropriate for the particular document and client. In many cases, signing and witnessing a document in person may continue to be the most appropriate approach.