You may recall we recently posted that the Justice Legislation Amendment (System Enhancements and Other Matters) Bill 2021 had passed through parliament dealing with electronic signing on a permanent basis.
A number of provisions set out in the Act and the accompanying regulations come into operation today, 26 April 2021. In particular:
Part 11 which amends the Oaths and Affirmations Act 2018 to:
- allow for an oath or affirmation to be said aloud by audio visual or audio link;
- permit the signing and witnessing of an affidavit or statutory declaration by electronic means and sets out the requirements when doing so.
Part 12 which amends the Wills Act 1997 to:
- introduce the remote execution procedure enabling Wills to be signed, witnessed, altered, revived and revoked by electronic means.
Part 13 which amends the Powers of Attorney Act 2014 to:
- introduce the remote execution procedure enabling all forms of powers of attorney under the Act to be signed, witnessed, accepted and revoked by electronic means.
Importantly, the remote execution procedure for the electronic signing of Wills and powers of attorney should be strictly followed and one of the witnesses must be a special witness who is either an Australian legal practitioner or a Justice of the Peace. This is different to the eligible witnesses when signing a Will or power of attorney in person.
The new powers of attorney forms incorporating the changes for electronic signing are available here.
This is a significant milestone in how we operate as legal practitioners in the area of wills and estates and one of the many ways COVID-19 has changed the way we go about our business, hopefully for the better.
Something else to note is that, under separate legislation, documents required under the voluntary assisted dying regime and an advance care directive cannot be electronically signed and witnessed. It is therefore really important to check the signing requirements are properly followed when signing any important legal documentation.
