A New Way to Sign Estate Planning Documents

KEY TAKE-OUTS

• During the COVID-19 pandemic, the Electronic Transactions Amendment (Remote Witnessing) Bill 2021 temporarily amended the Electronic Transactions Act 2000 to provide for the remote witnessing of estate planning documents.
• Now, at the tail end of the pandemic, the NSW Government have decided that these temporary provisions should be made permanent, which will allow remote witnessing of estate planning documents moving forward.
• This provides convenience and flexibility for both clients and lawyers, especially those living in regional, rural or remote areas, the elderly, and those suffering from an illness or living with a disability.

During the COVID-19 Pandemic (“the pandemic”) the NSW Parliament introduced temporary legislation to allow for the signing and witnessing of documents via ‘audio-visual link’ (AVL). As of November 2021, the Electronic Transactions Amendment (Remote Witnessing) Bill 2021 has allowed the 18-month pilot program to continue permanently. This is a game-changer for the legal industry as we are able to facilitate greater access to the law for our clients.

Before the COVID-19 Pandemic

Before the pandemic, the execution of estate planning documents, like many other legal documents, were confined to signing face-to-face and in person. With the gradual evolution of technology, some documents were able to be legally executed via online programs such as DocuSign or Adobe Sign. Unfortunately, this did not extend to estate planning documents, as the Succession Act and other relevant legislation requires ‘wet signatures’ on the documents themselves and additionally the component of face-to-face and in person signing.

Remote Witnessing Now

The pandemic has forced numerous industries to adapt to a new way of business, and the legal industry is no different. Limits to face-to-face contact have forced the development of technologies and laws to allow for remote witnessing of legal documents, including estate planning documents, deeds, agreements and statutory declarations. Of course, there are limits to these provisions as not “all” documents can be signed remotely, but a big change in the legal industry is the ability to remotely witness estate planning documents.

In April 2020, the Government enacted temporary remote witnessing measures as part of the response to the pandemic. After what Attorney General, Mark Speakman described as a “Successful trial period of 18 months”, the Government introduced the Electronic Transactions Amendment (Remote Witnessing) Bill 2021. This bill allowed for the continuation of these remote witnessing measures indefinitely, meaning estate planning documents continue to be available for remote execution today.

What is involved in remote witnessing?

Remote witnessing, or AVL witnessing, operates by the witness observing the client sign a document in real-time over AVL. The witness then confirms having witnessed the client sign the document by signing a copy of the document as soon as practicable after the appointment.

The process and requirements for witnessing documents by AVL involve:

1. Observing the signatory sign in real-time: the witness must observe the signatory sign the document in real-time using an application that allows a live audio-visual connection between the signatory and the witness, such as through Facetime, Zoom or Microsoft Teams. The signature, for estate planning purposes, must be a physical signature made with wet ink.
2. Confirm the witnessing of the signature: this is completed by signing the document, either in counterpart, countersigning the original when received in the post or countersigning a copy when scanned or forwarded electronically.
3. The witness must be reasonably satisfied: the witness must be reasonably satisfied that the document signed by the witness is the same document or a true copy of the document that was signed by the signatory.
4. Endorse the document: the signed document or copy of the document must be endorsed with a statement by the witness specifying the method of witnessing and confirming that the document was witnessed in accordance with Section 14G of the Electronic Transactions Act 2000 (the Act””).

The Act also provides that the witness need not be located in New South Wales to witness the document, and regardless of where the witness is located at the time of signing, the document will be taken to have been executed in New South Wales if the signatory was located there at the time they signed the document.

Other Methods to Sign Estate Documents

Despite the effect of the new legislation, traditional methods of signing and witnessing documents will remain available.

These include:

1. In person with an authorised person, such as a Lawyer; or
2. At home with 2 independent witnesses over the age of 18 years of the client’s choice.

However, it is noted that one of the estate planning documents, which are called Power of Attorney and an Appointment of Enduring Guardian (“Enduring Guardianship”), must be witnessed by an Australian Legal Practitioner, Registrar of an Australian Court, an employee of the NSW Trustee and Guardian or a qualified overseas lawyer. This may raise an issue for you if you are also preparing this document and therefore may need to resort to a face-to-face meeting or alternatively a meeting by AVL.

The Advantages and Disadvantages of Each Method

In Person

If you choose to execute your documents in a face-to-face appointment with the Lawyer, you will be able to complete your estate planning documents in one sitting. However, the important thing to note is the persons you have appointed under your Power of Attorney and Enduring Guardianship documents must also sign the document and in order to have your estate planning documents finalised “in one sitting” they also need to be in attendance.

One would argue that this is the most efficient way to sign estate planning documents, however, there may be some difficulty trying to arrange a singular time when everyone is available to attend the same location.

Independently at Home

Before remote witnessing, signing at home was considered the most convenient way to execute estate planning documents. As noted previously, Power of Attorney and Enduring Guardianship documents are still required to be witnessed by an authorised person, however, you may be able to arrange for the authorised person to attend your home in order to sign these documents. Although, if you are just preparing a Will, you can execute this at home with your own selected independent witnesses who are over the age of 18 years. Alternatively, if you are preparing all three (3) estate planning documents, you can elect to sign the Will at home and the other two (2) documents via another method as discussed above.

AVL or Remote Witnessing

AVL witnessing is arguably now the most effective and convenient way to execute your estate planning documents in the comfort of your own home while having access to a Lawyer remotely. This gives an exceptional level of flexibility for yourself, the Lawyer and your appointed Attorney or Guardian in your estate planning documents. This is because multiple people can log on to one call from different locations, so long as they have copies of the estate planning documents printed. Another benefit to this is that you are able to part take in the estate planning process completely remove, as you can meet with the Lawyer at the beginning of the process and at the conclusion when you are signing the documents.

However, the disadvantages of signing via AVL is where technology is unavailable, inexperience or distrust in technological platforms exist or where people prefer face-to-face contact with their Lawyer.

So, what’s next?

If you are currently or planning to prepare estate planning documents and are unsure of the best method to sign the documents, feel free to contact me on the below information and we can guide you on how we can best facilitate this.