The requirement to witness and sign legal documents in person, with all parties present, has been the only available method to formally manage a range of legal documents.
Recent changes to Victorian law mean that for most legal documents electronic signatures and online witnessing has now become an ongoing practice option.
The following pieces of legislation have been amended to enable these significant reforms, including the:
- Electronic Transactions (Victoria) Act 2000
- Oaths and Affirmations Act 2018
- Wills Act 1997
- Powers of Attorney Act 2014
15.1 What does this mean?
Arrangements allowing legal documents to be signed electronically and witnessed online in real time using audio-visual technology (AVL) can now be implemented as standard witnessing practice for certain documents.
Importantly, these new laws do not replace existing ways to witness documents. You may continue to witness documents in the usual manner, without using online witnessing procedures. Visit our departmental website at www.justice.vic.gov.au to read more about the existing processes.
You cannot certify a true copy of an original document or certify a person’s identity online. This must be completed in-person.
15.2 How does witnessing online via AVL work?
If a document has a witnessing requirement, this may be fulfilled through online witnessing under the new amendments. This means the witness can be ‘present’ via an audio-visual link. The amendments require that:
- all parties involved are connected through an audio-visual link
- if the document requires the witnessing of a signature, the witness must see this take place through an audio-visual link
- the witness must be satisfied that the document they sign is the same document or a copy of the same document signed by the signatory (the person who signed the document)
- all aspects of the witnessing by audio visual link must take place on the same day
- any other prescribed requirements that apply to the document being signed must also be met
- the witness must include a statement on the document that all the requirements of witnessing by audio visual link have been met.
Witnesses do not need to be physically located in Victoria to witness a document via audio visual link unless they are required to by another applicable Victorian law. For example, all participants must be located in Victoria during the witnessing process for power of attorney documents and wills, codicils and other testamentary instruments.65
Witnesses must also ensure that they fulfil any existing duties they may have under any other relevant statute or within common law – these will apply in addition to their obligations when witnessing by audio visual link.
It is important to note that both parties must have access to suitable IT equipment and software (including scanning, emailing and digital signing) and access to online audio-visual platforms such as Microsoft Teams, Zoom or WebEx.
15.3 Witnessing signatures, taking oaths and affirmations
Using audio-visual technology, you can conduct the processes that you would usually undertake in witnessing signatures and taking oaths and affirmations.
Depending on how the electronic signature is made, either the JP or the member of the public may need two electronic devices, one to sign on, and one to maintain audio-visual communication of the signing process.
The new legislation does not affect the existing requirements of witnesses, either in statute or common law, to be satisfied of certain matters or to certify certain matters including:
- the identity of the signatory
- that the signatory has decision making capacity
- that there is no defect such as undue influence, duress or unconscionable conduct apparent in the transaction
- that the signatory is signing freely and voluntarily.
If a witness is not able to meet these requirements by audio-visual link, the witness should not execute the document.
15.3.1 Which documents can be witnessed online?
| Type of online document and practice requirements | |
|---|---|
| Statutory Declarations |
Both the declarant and the witness are still required to fulfil all existing obligations under s30 of the Oaths and Affirmations Act 2018 while each appearing on audio-visual link. If a statutory declaration is made in electronic form or witnessed via audio visual link, the witness may use a scanned or electronic copy of that statutory declaration to comply with s30 of the Oaths and Affirmations Act 2018. When making a statutory declaration in electronic form or via an audio-visual link, the witness must include a statement that specifies the manner of the witnessing and clarify whether a scanned or electronic copy of the statutory declaration was used. This statement may be pre-filled on the statutory declaration form. All online witnessing steps must be completed on the same day. |
| Affidavits |
Both the deponent(s) and authorised affidavit taker may use a scanned or electronic copy of the affidavit for the purposes of complying with all existing requirements of s26 and s27 of the Oaths and Affirmations Act 2018. If an affidavit has been signed and sworn or affirmed by a deponent by audio visual link, the authorised affidavit taker must state in the jurat that the affidavit was signed and sworn or affirmed by the deponent by audio-visual link, and that the authorised affidavit taker has used a scanned or electronic copy of the affidavit and not the original in completing the jurat requirements under s27(1) of the Oaths and Affirmations Act 2018. All online witnessing steps must be completed on the same day. |
| Powers of Attorney |
Each witness is still required to fulfill all existing obligations under the Powers of Attorney Act 2014, including certification requirements under s36 of the Act. A power of attorney document can be electronically signed and witnessed with all persons in separate spaces connected by an audio-visual link. The witnesses must observe, by audio-visual link, the principal (or directed signer) sign the document, either electronically or on hard copy (and the signature of any witnesses physically present). The witnesses must also be physically situated within Victoria. *Please review the broader Power of Attorney document list in Section 15.3.2. |
| Wills |
The Wills Act 1997 allows wills (including those signed under direction) and other testamentary instruments to be electronically signed and witnessed online. This means a will can be validly executed where the testator and witnesses are in separate locations, provided they are connected by audio visual link. It is possible to use a mix of witnesses that are physically present with the testator and those that are connected to the testator through audio visual link, however any witnesses that are remote will have additional requirements. One or more people participating can be present via audio visual link, provided they are physically situated in Victoria. A special witness, which includes JPs, is required when the remote execution procedure is used to execute a will or other testamentary instrument online. All witnessing steps must be completed on the same day and within Victoria. |
15.3.2 Power of Attorney Documents and Special Witness Requirements
| Documents that can be witnessed remotely and require a special witness | Documents that can be witnessed remotely without a special witness |
|---|---|
|
|
15.4 Electronic signatures and witnessing
There are several ways to undertake electronic signing of documents, with the format of documents and the type of software available affecting the process of doing so. However, there are two main methods you can use:
- signing on paper and converting to an electronic document, or
- electronic signing on a device.
An audio-visual communication link should be maintained throughout the process.
15.4.1 Signing on paper and converting to an electronic document
If a paper version of the document is available, it can be signed in the usual manner and converted to an electronic document for sending.
Most printers available are also able to scan documents. Alternatively, the document be captured by a camera, with most mobile phones and tablets having high-resolution cameras that can capture images of documents as electronic files. In addition, there are many apps available for document scanning on phones and tablets (e.g., Adobe Scan, search for “scanning” in the Apple or Android app stores).
15.4.2 Electronic signing on a device
An electronic document can come in many formats, such as PDF document, a Microsoft Word document or an image file (e.g., jpeg). There is also a range of software for editing these files.
The term “electronic signature” is not defined to preserve technology neutrality. Therefore, you can electronically sign a document in several ways. For example, you could:
- Paste a copy of a signature into a document
- sign a PDF on a tablet, smartphone or laptop using a stylus or finger
- physically sign a hardcopy document and scan the document before sending to another person while maintaining an audio-visual link (e.g., using Zoom or Microsoft Teams)
- confirm your agreement by electronically selecting an option indicating agreement.
15.4.3 Recording that a document was witnessed remotely
A witness must write or stamp under their signature a statement indicating that the document was witnessing using an audio-visual link in accordance with the legislation, and in accordance with any specific requirements for the document.
15.4.4 Suggested statements for online documents
Statutory Declarations:
“This statutory declaration was witnessed via an audio-visual link using a scanned copy of the statutory declaration in accordance with the Oaths and Affirmations Act 2018.”
If a declarant is to be assisted by audio-visual link (e.g., through interpreter services), the person assisting the declarant must be sent a copy of the statutory declaration before it is finalised and write down their name, address, and an explanation of what kind of assistance they provided.
Affidavits:
“This affidavit was sworn by the deponent via an audio-visual link, and the authorised affidavit taker had used a scanned copy of the affidavit and not the original in accordance with the Oaths and Affirmations Act 2018.”
Power of Attorney:
“This document was witnessed by “name” who is a Justice of the Peace in accordance with the Powers of Attorney Act 2014, and no audio-visual recording of the signing was made.”
An audio-visual recording of the signing of the document by remote witnessing procedure may be made only if all the parties to the procedure consent to the recording being made.
Wills:
The special witness must fulfil the requirements of an ordinary witness. The special witness must be the final signatory, and must only sign the document after:
- checking the document for compliance with the remote execution procedure; and
- ensuring that there is a statement on the will (this can be written or typed) setting out:
- whether the document was signed and witnessed in accordance with the remote execution procedure;
- whether they are a special witness and include their qualification as a special witness; and
- whether to their knowledge, an audio-visual recording was made of the remote execution procedure.
Please refer to Section 24.8 for a Checklist regarding remote and online witnessing.
Footnotes
[65] Section 5A(3), Powers of Attorneys Act 2014; Section 8A(3), Wills Act 1997
Updated