Included in the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020, the regulation allows both witnesses to witness the signing via audio-visual link, where at least one witness must be a “special witness”.
The regulation applies to documents signed between 15 May and 31 December 2020.
In Queensland, wills must be witnessed by two people, while for enduring documents, the only witness required for an audio-visual link is a special witness.
Special witnesses include:
- a lawyer
- justice of the peace
- commissioner for declarations who is employed by the firm who prepared the document and who normally witnesses documents of that kind
- a notary public
- the Public Trustee or an employee of the Public Trustee (if the document is prepared by the Public Trustee’s office)
In addition, when witnessing documents via audio-visual link, requirements that must be met include:
- the special witness verifying the identity of the person signing the document
- the audio-visual link enabling the witness to be satisfied, by the sounds and images made by the link, that the person is signing the document
- the witness observing the person signing the document in real time
- the person signing each page of the document
- the witness being satisfied that the person is freely and voluntarily signing the document
According to law firm Cooper Grace Ward Lawyers, if a document has been witnessed via audio-visual link, the special witness must provide a certificate which must be kept with the document that was signed by the witnesses.
The certificate must state:
- the date the document was signed and witnessed
- the document was signed and witnessed in accordance with the regulation
- the steps the witness took to verify the identity of the person signing
- the process followed for signing and witnessing the document
- the special witness qualification (lawyer, justice of the peace etc.)
- whether the witnessing via audio-visual link was recorded
- any other matters the special witness considers relevant to the signing or witnessing of the document
“As soon as possible after a document has been witnessed via audio-visual link, the witnesses must sign each page of the original document, or sign a true copy of the signed document, such as a scanned copy,” the law firm said in a blog.
“The regulations acknowledge that the witnesses may not be able to sign the original document or a copy on the same day the document was witnessed via audio-visual link.”
However, Cooper Grace Ward Lawyers warned that the new regulations only relate to the signing of documents.
“They do not affect existing duties to consider things like a person’s capacity to sign, the possibility of undue influence and verification of identity,” it said.
