8. Witnessing documents

Your key function as a JP is to act as an independent and objective witness to documents people use for official or legal purposes. The process is sometimes called ‘attesting’ or ‘witnessing an instrument’. It means signing a legal document to verify that it has been completed according to the law that is applicable to the document.

8.1 How to witness documents

It is good practice to use the same procedure each time you witness a document, unless the law requires you to do something different.

In the event you are asked to outline your witnessing process, using the same procedure each time you witness a document will allow you to efficiently describe the process.

You can use the 24.5 Checklist for Witnessing Documents - General in this handbook as a general procedural guide for witnessing documents.

8.2 Steps to witness documents

Step 1. What type of document is it?

Some documents are straightforward whereas others are more complex.

When a person contacts you about witnessing a document, ask what type of document it is so that both of you can be prepared.

Step 2. Do you have authority to witness this document?

Documents will usually list the categories of people who are authorised to witness them. Before making an appointment ask the person to check if JPs are included in a list of witnesses on the document. Check again when you have the document in front of you.

If JPs are not listed, or the document does not include a list of authorised witnesses, you have several options:

• ask the person why they believe a JP is required to witness the document
• refer the person to the organisation that requires the document to clarify who is authorised
• assist the person to contact the organisation that requires the document
• refer the person to one of the authorised witnesses listed in the document
• find out if the document is to be used in Victoria or overseas and consider if it should be witnessed by someone who is authorised to witness interstate or overseas documents, e.g., a notary public.

Some documents only require the witness to be an independent adult. Other documents may need the witness to have known the signatory for a period or to vouch for their identity. In these instances, the witness does not need to hold any official position. For example, Australian passport applications need to be endorsed by a person who has known the applicant for at least 12 months, or since birth for applicants under one-year old.

Step 3. Is the document correctly completed?

You do not need to verify that the information contained in the document is true or correct. Your role is to ensure that the aspects of the document to which you attest or certify, are correctly completed.

You are not expected to know whether a document is in a form that is legal. The person making the document, not the witness, must ensure it is in a proper form. In cases of uncertainty, the person should obtain legal advice. However, if it is obvious to you that the form is not the right one, you may suggest that the person obtains a correct form before having it witnessed.

Step 4. Are there special requirements?

Some documents have special requirements, and it is important to be clear about which ones apply to each document. Sometimes the form will contain instructions for the witness. Make sure you have complied with any special requirements before you witness.

Step 5. Who signs the document?

Generally, the person named in the document must be the person who signs it.

The exception to this rule is when another person has been appointed to act on behalf of the named signatory. Before you witness this type of document ask the appointee for proof of identity in the form of photo identification and proof of authority, for example, a current power of attorney.

A legal document can only be executed by a natural person. However, corporations and associations adopt procedures to allow a nominated officer or officers of a corporation or association to execute documents on behalf of their organisation. This can occur with or without use of the organisation’s official stamp (called the ‘common seal’). The Corporations Act 2001 (Cth) establishes the procedure for authorised representatives of a company to execute documents.²⁹

Step 6. Does the person understand what they are doing?

Before witnessing a signature to a document, always ask the person if they have read the document and fully understand what they are signing. Only a person with decision-making capacity who voluntarily signs the document can make a valid legal document. As a JP you are not expected, or qualified, to make a detailed assessment but if you have any concerns you should investigate. The best way to investigate is to ask the person open-ended questions.

Signs that might indicate a person does not understand the implications of signing the document include:

• inappropriate answers
• difficulty answering questions
• memory lapses during the conversation
• restricted vocabulary.

These signs might be due to a language barrier, illness, disability, or cognitive deficit. They might mean a person is having trouble understanding the Australian legal system. They do not necessarily mean that the person does not understand the nature and effect of the document they are signing.

Remember that you are checking the capacity of the person to make this document. Equally, an ability to read does not mean a person has capacity to understand a complicated legal document.

If you resolve any initial doubts about decision-making capacity by questioning the person, you can witness the document. If, after you question the person, you still have doubts, do not witness the document, and explain your position to the person. They may require additional legal advice or the support of a medical practitioner.

If you are asked to witness a document made by a child

There are many documents that can be executed by a person under 18 years old.

If you are asked to witness a document made by a child, (especially if the child is under 14 years of age), you may wish to involve the child’s guardian or a supportive adult to be satisfied that the child is:

• legally entitled to sign the document;
• fully understands what they are signing; and
• understands the effect of signing the document.

Where relevant, you should place a note with the jurat to indicate the age of the deponent and that, in your opinion, the child/young person understands these aspects. For further information, please refer to the Decision-making capacity section of this Handbook.

Step 7. Is the person signing of their own free will?

Even when a person has legal capacity and understands what signing the document means, the document may be invalid if the person does not sign voluntarily. Before witnessing a document, you should be satisfied that the person is signing of their own free will and is not being coerced into making the document.

Sometimes people in a relationship of trust with a person may try to obtain legal power over that person's financial or personal affairs for their own benefit. This kind of abuse of trust may happen in any relationship but is especially prone to occur where one person relies on the other for care or is afraid of the other person.

Talk to the person making the document alone and without anyone who might have an interest in the transaction present, so that the person may speak freely. This is important if a person who might benefit from the transaction attends with the person making the document.

If you have any doubts about the person signing of their own free will, do not witness it. If doubts persist, refuse to witness the document, and suggest the person seeks legal advice.

Step 8. Advise the person of penalties for false statements

Your role is to satisfy yourself as to the accurate completion of the document and not for you to read the contents. You should inform the person that they are responsible for ensuring the contents are true and correct. There may be penalties, including imprisonment, for making false statements in a document.

Step 9. Is the document correctly dated?

The date the document is signed must be the same as the date it is witnessed but, in many cases, it is acceptable for different signatories to a document to sign at separate times before different witnesses.

Step 10. Are there any alterations or blank spaces in the document?

You should initial and date all alterations (including erasures, use of liquid paper or other means of alteration) to demonstrate that the alteration was not made after the document was signed. Both the authorised witness and signatory must initial each alteration.³⁰

The signatory or witness should also place a 'Z' or an 'X' across blank spaces, so that nothing else can be added to the document after it is signed and witnessed. Both you and the signatory should initial one of the cross-bars of the ‘Z’ or ‘X’.

Step 11. Are all the questions answered?

If the document is a form or application, look to see that all the questions are answered. If they are not, ask the signatory to answer them. If a question is irrelevant ask the person to cross it out or write 'not applicable' next to it. Both you and the signatory must initial and date any crossing out.

Step 12. Are there any exhibits, annexures, or attachments?

Exhibits, annexures, and attachments are documents that are attached or related to the main document and contain information that supports that document.

Each attached or related document must be identified in the main document. This is usually done by consecutive numbers or letters of the alphabet, for example, 'Annexure A', 'Annexure B' for single page annexures, or 'A1-1' to 'A1-3' for multiple page annexures.

All attachments require a separate certificate to be attached.

If a document refers to exhibits, annexures or attachments, check that each is present, marked and identified correctly. Each attachment should include the name and date of the main document. The date of witnessing the exhibit should be the same as the date of the main document.

If a document refers to annexures or exhibits, but they are not with the document, you must not witness the document. Do not sign exhibits or annexures until the oath, affirmation or declaration is taken.

Step 13. Endorse all exhibits

If there are exhibits or annexures to the document, you must sign a completed certificate for each exhibit, having ensured they are correctly marked. If they are not marked, ask the signatory to mark them correctly before you sign. You do not need to sign the exhibit itself.

In many cases, the deponent does not need to sign the exhibits or annexures, but you should check the requirements of the documents you are witnessing.

Step 14. Ensure the document is signed in your presence

The signatory should sign the document in front of you. If the document is already signed, ask the person to cross out the signature and sign it afresh in your presence. Both you and the signatory must initial and date the crossing-out.

If there is more than one place on the document that requires signing, you will need to witness each signature separately. You must not witness:

a blank or partially completed document, for the signatory to complete or sign later; or

a document which has been pre-signed by a person who is not present for the witnessing.

Step 15. Administer the oath, affirmation, or declaration (if required)

If the document is a statutory declaration, you will take the declaration from the person. If the document is an affidavit, you will administer an oath or affirmation.

Step 16. Sign and add your JP details

After the person has signed the document in your presence, you witness the execution of the document by signing and dating the document. It is generally advisable to use an appropriate pen colour (black or blue) that helps prevent the impression of a photocopied stamp and signature. Follow any explicit instructions on the document in relation to pen colour.

You then clearly print or stamp your name and details underneath or next to your signature.

Place the stamp close to your signature. Do not place it over your signature and do not sign over your stamp. You must endorse your title showing your authority to witness the document. This endorsement is referred in the examples in this handbook as [name, address, and title of witness].

8.3 Common Questions

8.3.1 Should I read the document?

You do not need to read the document in detail; however, you will look briefly though the document in order to witness it. Your duty is to ensure that the document has been correctly executed and all parts of the document have been completed.

8.3.2 Do I need to verify that the content of a document is correct?

No, you do not need to verify the content is correct. The onus is on the person who signs the document to ensure it is true. You should not witness a document you know to be untrue or incorrect; however, you are not responsible for ensuring the truth of the document. You should always remind people that making a false statement may constitute fraud and/or perjury. These offences often have significant consequences, including imprisonment.

8.3.3 How do I witness multiple-page documents?

As a best practice, multiple pages of a document should be permanently fastened together, e.g., stapled. If not possible, ask the person to number each page in this manner, 'page 1 of 4', 'page 2 of 4' and so on. Then sign at the foot of each page and sign and date the final page as the document requires.

This applies to discrete certified copies, statutory declarations, affidavits and any relevant attachments.

8.3.4 Whose signature can I witness?

You can only witness the signature of the person who signs the document in your presence.

8.3.5 Can I be a witness for friends or relatives?

Although it is not unlawful to witness a document signed by a friend or relative, it is not good practice. We recommend that you do not witness under these circumstances, as it may be perceived as a conflict of interest. You could risk being accused of having a personal interest in the execution of the document and lacking independence as a witness. In some cases, it could make the document invalid.

8.3.6 Can I help complete the documents?

As impartiality is an important part of your role, it is not recommended that you both witness and contribute content for the same person. If you wish to help someone complete a document, you should not then witness that document and you should refer the person to another JP.

Please note, the current statutory declaration form allows for a JP to read that document if a person is visually impaired or has literacy issues. Additionally, other parties, not prescribed in the Oaths and Affirmations Act 2018, can assist with the content of the statutory declaration, and can also sign the document in front of an authorised witness.

8.3.7 What if I cannot comply with a requirement set out in the document?

If you cannot meet a requirement about witnessing the document, you must decline to witness the document. For example, citizenship applications require you to have known the signatory for a specified period. If you have not known the signatory for the specified period, you must decline to witness the document.

8.3.8 What do I need to know to witness a will?

Wills do not need to be witnessed by authorised witnesses if the process is conducted in-person. However, if a will or other testamentary documents are witnessed via online means, an authorised witness is required. One or more people participating can be present via audio visual link, provided they are physically situated in Victoria.

We do not cover the specifics of will-witnessing in this handbook. For more information about witnessing wills in Victoria, refer to www.legalaid.vic.gov.au.

Footnotes

[29] Section 127, Corporations Act 2001 (Cth)

[30] Section 30, Oaths and Affirmations Act 2018