COVID-19: New regulations allow virtual witnessing of estate planning documents in NSW

By James Whiley, and Emma Woolley 

The NSW Government has passed regulations to allow the witnessing of documents such as wills, deeds, enduring powers of attorney and appointments of enduring guardian to be witnessed via audio visual link during the COVID-19 pandemic. Our Private Clients team outlines what you need to do to ensure remotely signed documents are valid and legally enforceable.

If clients have access to a computer, smartphone or tablet, they will be able to schedule a video meeting with our team to sign their documents.  The steps to follow to sign in this manner are:

• Audio visual link established (by Zoom for example).
• Client displays to witness the document to sign and confirms they are satisfied with the document and have not made any amendments to it.
• Client signs and dates the document and witness observes the signature/s and date. There is also an option for signing counterparts, but our preferred approach is for parties to sign the same document if possible.
• Witness signs the same document and endorses the document with the words: ‘This [name of document] has been signed and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).
• Client mails (either immediately or when able) the original document to us which we then countersign and store in our safe.
• Wills still require two independent witnesses to be deemed valid, so a second witness will need to follow the step above with respect to Wills. If a client cannot source an independent second witness, a second person from our team will be available.

Following these steps will ensure that clients’ documents are valid and legally enforceable, even though they have been witnessed via Audio visual link.

We understand that many clients are anxious about their estate planning during this difficult time, but have been reluctant to meet in person to execute their documents.  We can now assist them to put these documents in place remotely to ensure they are valid and enforceable, and that estate and other entities (such as family trusts) are managed smoothly and in accordance with instructions. Please contact our Private Clients team to discuss this further.