This article was updated on Wednesday, June 29, 2022.
If someone witnesses my will being signed by Skype, is that valid? Yes, to witness a will via technology is now valid.
Video conferencing technology like Skype, WhatsApp, FaceTime and Zoom can now be used in NSW in the witnessing of important legal documents like wills, powers of attorney and statutory declarations under a new regulation made yesterday by the NSW Governor.
“Questions about what to do about witnessing documents are very timely because in NSW a regulation has just been passed to allow signing electronically – and this includes using programs, such as Skype, so that the lawyer can see and be satisfied that the document has been signed by the person who is supposed to sign it,” said Peter Bobbin, Principal Lawyer at Sydney law firm, Coleman Greig.
Attorney General Mark Speakman said the new temporary regulation, made under section 17 of the Electronic Transactions Act, will help reduce face-to-face contact during the COVID-19 pandemic.
Lawyers are a conservative bunch – with good reason. Their stodginess and reluctance to change practices and long-held conventions protects us all. Particularly where our money is concerned.
Imagine if it were too easy to fake the signing of a will. Bedlam. The crazy sibling could easily subvert our wishes. The nasty daughter-in-law – could too easily claim that this is what Mum wanted me to have, just by easily faking a process of gaining a signature – or hiding the fact that it was gained under pressure or duress.
So when wills are signed, there must be a water-tight witnessing process, so no-one can be in any doubt about the fact that we wanted something, so we signed the document, declaring we wanted all our assets left to particular people in a particular way – no matter what anyone else thinks.
That is, right up until now. That is, right up until Covid-19, when we have had to return to the ancient strategy of isolating ourselves to protect against the spread of disease.
(It’s not the first time we’ve had to introduce draconian laws to protect us from illness. If any doubt, read John Henderson’s Florence Under Siege: Surviving Plague in an early modern city. It was published in August 2019 by Yale University Press but you’d think it was the playbook for what we are experiencing now.)
Because of social distancing we have had to change the way things are done but still ensure documents are validly signed.
“NSW now has regulations for witnessing to occur electronically for a variety of documents including Wills, Powers of Attorney and affidavits. This is intended to only apply during the COVID pandemic period,” Mark Speakman said.
Peter Bobbin said you will find the Regulation here, at: https://www.legislation.nsw.gov.au/regulations/2020-169.pdf
And the relevant power comes from ELECTRONIC TRANSACTIONS ACT 2000 – SECT 17 Regulation-making power.
To see Mark Speakman’s press release go to:https://www.dcj.nsw.gov.au/news-and-media/media-releases/covid-19.-video-tech-for-witnessing-legal-documents
Note that the changes are only for the period of Covid-19.
This is because the law is guarded about any process other than the physical act of signing occurring in the physical presence of the witness. This prevents any manipulation or trickery. (We don’t want to encourage conspiracy theories but a recent BBC television series, The Capture, plays with the idea that you can think the electronic surveillance you’re looking at is real, when it actually is not. See: https://www.bbc.com/news/entertainment-arts-49984517.
Fiona Wade, a spokesperson for the NSW Law Council said each state is dealing with the issue – but all are managing it slightly differently. She suggested that to see what Queensland is doing, go to:
https://www.courts.qld.gov.au/__data/assets/pdf_file/0007/646837/sc-pd-10of2020.pdf
For more on the signing of wills, go to: https://good-grief.com.au/your-will-a-popular-topic-at-talks-about-death/
Even in a pandemic, we need to prepare our end-of-life documents and plan. See what this planning looks like at: