In New South Wales Section 6 of the Succession Act provides that a Will isn’t valid unless it is in writing and signed by the Will maker (or by some other person in the presence of and at their direction ), and the signature is made or acknowledged by the Will maker in the presence of two or more witnesses present at the same time, and at least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
Casson v Dade (1781) 28 ER 1010 established visibility as the test of “presence”- the Will maker who suffered from asthma rested in her coach outside her solicitors’ office after signing her Will before two witnesses. Due to a fortunate series of events, the coach had been parked in such a way that it afforded a view of the interior of the solicitor’s office; the Court held the witnesses had signed in the Will makers presence.
In New South Wales today Parliament passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“the regulation”) allowing for the witnessing and attestation of documents to take place by audiovisual link.
An “audiovisual link” is defined as “technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”.
A document is defined as a will, power of attorney or enduring power of attorney, deed or agreement, an enduring guardianship appointment, an affidavit, (including an annexure or exhibit to the affidavit) and statutory declaration.
Remote witnessing of signatures may be performed by audiovisual link, so long as the witness: observes the signatory sign the document in real-time; attests this by signing the document or a copy of the document; is reasonably satisfied that the document the witness signs is the same document or a copy of the document signed by the signatory; and endorses the document, (or a copy of the document) with a statement specifying that the document was witnessed in accordance with the regulations.
The regulations further state that a witness may sign a counterpart of the document, or by countersigning a copy of the signed document the signatory scans and sends the witness electronically.
The witness must sign as soon as practicable after witnessing the signatory sign of the document. However, this does not limit the other ways in which a witness may confirm they witnessed the document.
The regulation made under s17 of the Electronic Transactions Act 2000 (NSW) will expire on 26 September 2020, unless this date is changed by further regulation or resolution of Parliament.