Post Pandemic Use of Electronic Signatures and Remote Witnessing in Succession Planning

Despite technological change in many areas of the law, the concept of signing (and witnessing) succession planning documents electronically, for many, remains absurd. In recent times, however, and definitely during the pandemic, the question ‘can I sign my documents electronically or online?’ has become increasingly common. Unfortunately, the legal answer in almost all Australian jurisdictions is ‘no’ or ‘not without incurring a lot of legal expenses to have it recognised’. With the exception of:

• Victoria, which (as of 26 April 2021) has permanent widespread electronic signature and remote witnessing legislation for all succession planning documents;
• New South Wales, which (as of November 2021) has permanent remote witnessing legislation, but expressly excludes the use of electronic signature for succession planning documents; and
• Queensland, which (as of 30 April 2022) has legislation that permits the use of electronic signatures and remote witnessing for limited succession planning documents,

all other Australian jurisdictions continue to prevent the use of electronic signatures and remote witnessing for all succession planning documents and their execution remains a very formal (pen-and-wet-ink and physically present witnesses) process.

Despite much hesitation, it is clear that a new era has dawned, and it is likely that succession planning legislation that permits the use of electronic signatures and remote witnessing in succession planning documents will continue to spread throughout Australia and become the ‘new normal’.

Legislation Prior to the Pandemic

Legislation in each Australian jurisdiction provides for ‘simple’ electronic signatures, with the effect that they have the same legal status as handwritten signatures if both parties agree to the use of the electronic signatures.1 (Revised Explanatory Memorandum, Electronic Transaction Bill 1999 (Cth). Electronic Transactions Act 2000 (Tas), Electronic Transactions (Victoria) Act 2000 (Vic), Electronic Transactions Act 2001 (ACT), Electronic Transactions Act 2000 (NSW), Electronic Transactions Act 2001 (Qld), Electronic Transactions (Northern Territory) Act 2000 (NT), Electronic Transactions Act 2000 (SA) and Electronic Transactions Act 2011 (WA). Also, see Electronic Transactions Act 1999 (Cth) sch 1.)

Prior to the pandemic:

• all Australian jurisdictions provided that electronic signatures could not validly be used to sign (or witness) succession planning documents (including wills, powers of attorney and health-care documents);2 (Electronic Transactions Act 2000 (Tas), Electronic Transactions (Victoria) Act 2000 (Vic), Electronic Transactions Act 2001 (ACT), Electronic Transactions Act 2000 (NSW), Electronic Transactions Act 2001 (Qld), Electronic Transactions (Northern territory) Act 2000 (NT), Electronic Transactions Act 2000 (SA) and Electronic Transactions Act 2011 (WA). Also, see Electronic Transactions Act 1999 (Cth) sch 1) and
• key Commonwealth legislation, such as the Corporation Act 2001 (Cth) did not allow the use of electronic signatures.

Current Status of Legislation Across Australia

During the pandemic, and (if it can be said) after the pandemic, Australian states and territories responded in different ways. Unsurprisingly, the federal government, and the state governments in each state and territory have taken a different path, and where changes have been/were made they are not uniform.

Federal Government – Corporations Act
The Federal Government’s Corporations Amendment (Meetings and Documents) Act 2022 (Cth) which came into effect on 23 February 2022 (for the execution of documents) and 1 April 2022 (for meetings held and documents sent) made the temporary (pandemic) provisions that allowed the use of electronic signatures to execute company documents, and the use of technology to hold meetings, and sign and distribute meetings-related documents (‘the Corps Amendment Act’).

Key elements of these changes, which may provide considerable convenience for companies operating across borders or across the considerable distances in regional Australia, include:

• certain company and meeting related documents, including deeds, may be signed by electronic means so long as the method of signing identifies the person and indicates their intentions;
• there is no requirement for all signatories to sign documents, including deeds, in the same form or on the same page of a document or that they sign by the same method, and documents may be executed in counterparts via any appropriate technology;
• a company may provide meeting documents including notices of meetings and notices of a resolution electronically;
• a company can hold meetings either physically (in person), partially physically and partially virtually or wholly virtually providing the governing constitution allows for virtual meetings. If the constitution does not allow for virtual meetings, companies and registered schemes need to seek shareholder approval to amend their constitutions. Whichever method is used it is still required that meetings give the members a reasonable opportunity to participate;
• no particular technology/process is required to be used, however companies will need to ensure that the technology used is reasonable and allow the members who are entitled to attend the meeting, and do attend the meeting using that virtual meeting technology, as a whole, to exercise orally and in writing any rights of those members to ask questions and make comments; and
• parties to sign a document can sign without necessarily signing the same form or using the same method.

It is important to note that companies can continue to send documents/notices, sign documents, and hold meetings, in the traditional physical manner.

The Corps Amendment Act provides for a review of its provisions to be conducted within two years from its implementation. If this review fails to occur, the virtual meeting amendments will cease to have effect.

Victoria
In Victoria, the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) came into effect on 26 April 2021 and made the temporary (pandemic) provisions that allowed the use of electronic signatures and witnessing of documents by audio visual link permanent (‘the Victorian Act’).

The amendments implemented permit the following succession planning ‘documents’ to be signed using an electronic signature, and if they require witnessing, for this to occur via audio visual link:

• a will;
• a power of attorney or an enduring power of attorney;
• a deed;
• an affidavit; and
• a statutory declaration.

Although they resemble the emergency pandemic regulations, the Victorian Act imposes stricter requirements to safeguard against misuse.

With specific reference to enduring powers of attorney, the Victorian Act amends the Powers of Attorney Act 2014 (Vic). Under the amended provisions, each witness is still required to fulfill all existing obligations, including certification requirements under s36 of that Act, however the document can now 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.

With specific reference to wills, the Victorian Act amends the Wills Act 1997 (Vic) to add new sections 8A–8D which prescribe a new ‘remote witnessing procedure’ and contemplates and provides strict conditions and procedure for the execution, alteration and execution of a will (including those signed under direction).

Interesting components on the Victorian Act are:

• a ‘special witness’ (who must be either an Australian legal practitioner3 (An Australian Legal Practitioner means an Australian lawyer who holds a current Australian practising certificate) or a Justice of the Peace4 (The Justice of the Peace must be appointed under section 7 of the Honorary Justices Act 2014 (Victoria), must be one of the witnesses;
• section 8B(1) provides that ‘[i]f a will is executed in accordance with the remote execution procedure, the document which has been checked and signed by the special witness in accordance with section 8A(7) is the valid will’ and section 8B(4) provides that, unless recognised as an informal will or an order for rectification, ‘[c]ounterpart documents do not constitute a valid will’. This effectively removes any question about which ‘document’ is the original will;
• section 8B(2) provides that, for the purposes of the remote witnessing procedure, ‘[t]he place of execution of a will executed in accordance with the remote execution procedure is the place where the testator is located at the time the will is executed’. Some have interpreted this as allowing the will-maker and witnesses to be in entirely different places or countries, however given that section 8A(3) expressly provides that ‘[a]ll elements of the remote execution procedure must be carried out on the same day and within Victoria’ [emphasis added], the author does not agree. If any of the will-maker, the ordinary witness or the special witness are not within Victoria when the will is executed, the remote witnessing procedure is likely not available to them and the will is unlikely to comply with the new laws; and
• section 8C provides that ‘[a]n audio visual recording of the execution of a will by remote execution procedure may be made only if all of the parties to the procedure consent to a recording being made’. It also confirms that ‘[t]he making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the will executed by the remote execution procedure or the use of that procedure.’

New South Wales
In New South Wales, the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) came into effect in November 2021 and made the temporary (pandemic) provisions in Part 2B of the Electronic Transactions Act 2000 (NSW) (‘the NSW ETA’) that allowed the witnessing of documents by audio visual link permanent.

The NSW ETA now permits the witnessing of the following succession planning ‘documents’ to be by audio visual link:

• a will;
• a power of attorney or an enduring power of attorney;
• a deed or agreement;
• an enduring guardianship appointment;
• an affidavit, including an annexure or exhibit to the affidavit; and
• a statutory declaration.

Audio visual link is defined as technology that enables ‘[c]ontinuous and contemporaneous audio and visual communication between persons at different places, including video conferencing’. When witnessing documents over audio visual link, the witness must also take care to verify the identity of the signatory and be satisfied that it is them signing the document, that they are freely and voluntarily making the document and that the document is the same as the one they are signing as a witness if signing a counterpart.

There are certain criteria that must be met to satisfactorily witness a document remotely, a witness must:

• observe the person signing the document in real time;
• confirm that they witnessed the signature by either signing a counterpart or a scanned copy of the signed document. Either way the witness must sign as soon as practicable after witnessing the signing of the document;
• be reasonably satisfied that the document they sign is the same document, or a copy of the document, that they have observed the signatory sign; and
• endorse the document with a statement specifying the method used to witness the signature (for example, audio visual link) and that the document was witnessed in accordance with s 14G of the NSW ETA.

In NSW a document may be witnessed via audio visual link even if the signatory, witness or both are outside of the jurisdiction of New South Wales so long as the document is made or required to be signed under an Act or law of New South Wales or the governing laws for the document are the New South Wales laws.

The position in New South Wales relating to electronic signing has not changed with the implementation of the remote witnessing procedures. This means that electronic signatures are not possible for wills, enduring powers of attorney, enduring guardian appointments, affidavits and statutory declarations. Even though audio visual link witnessing is now possible for those documents, wet ink signatures are still required.

Queensland
In Queensland, the Justice and other Legislation Amendment Act 2021 (Qld) (“the Qld Act”) came into effect on 30 April 2022 and made a number of the temporary (pandemic) provisions in the COVID-19 Emergency Response Act 2020 (Qld) permanent.

The amendments implemented by the Qld Act permit the following succession planning ‘documents’ to be signed using an electronic signature, and if they require witnessing, for this to occur via audio visual link:

• general powers of attorney for businesses, which can now be signed using electronic signature, in counterparts, and without a witness;
• affidavits and statutory declarations, which can be signed using electronic signature, in counterparts,5 (Note: counterparts cannot be used where the document is being physically signed in the physical presence of a witness) and is required to be witnessed by a ‘special witness’ 6 (A special witness is one of the following: 1. an Australian legal practitioner; or 2. a government legal officer who is an Australian Lawyer who witnesses documents in the course of their government work; or 3. a notary public; or 4. a Justice of the Peace or a Commissioner of Declarations employed by the law practice that prepared the document) who can be present in person or present via audio visual link;
• deeds, which can now be signed using electronic signature, in counterparts, and without a witness; and
• particular mortgages.

Audio visual link is defined as ‘[f]acilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing’.7 (See s1B of Oaths Act 1867 (Qld) and s24H(9) Powers of Attorney Act 1998 (Qld)

Importantly, the temporary laws that were previously in place allowing wills, enduring power of attorney documents and advance health directives to be witnessed remotely have expired. Accordingly, these documents must now be executed on paper and in the physical presence of the required witnesses.

Australian Capital Territory, Tasmania, South Australia and Western Australia and Northern Territory
Despite some jurisdictions introducing temporary (pandemic) provisions that allowed remote witnessing of documents, each of the Australian Capital Territory, Tasmania, South Australia, Western Australia and the Northern Territory presently do not allow succession planning documents (including wills, powers of attorney, enduring guardians, medical appointments and deeds) to be executed using electronic signature and/or to be witnessed remotely.

Recognition of ‘Foreign’ Electronic Documents and Documents Witnessed Remotely

Practitioners must not forget that many jurisdictions8 (See The Convention on the Conflict of Laws to the Form of Testamentary Disposition and The European Succession Legislation. For specific examples see: England and Wales: Wills Act 1963 (UK); Australia: Part 5 Wills Act 2008 (Tas), s17 Wills Act 1997 (Vic), Division 6 Succession Act 1981 (Qld), Part 2.4 Succession Act 2006 (NSW), Part 3 Wills Act 1936 (SA), Part VII Wills Act 1970 (WA), Part 5 Wills Act 2000 (NT), and Part 2A Wills Act 1968 (ACT); and South Africa: Wills Act 1953 (South Africa) s3) have legislation that recognise foreign wills,9 (Note: legislation differs widely) foreign enduring powers of attorney and foreign deeds. It is entirely foreseeable that such legislation would recognise wills, enduring powers of attorneys and deeds executed using electronic signature and/or remote witnessing in a jurisdiction that allows them. For example:

• an executor (appointed under the terms of a valid will that was signed using electronic signature and/or remotely witnessed);
• an attorney (appointed under the terms of a valid enduring power of attorney that was signed using electronic signature and/or remotely witnessed); and/or
• a trustee (appointed under the terms of a valid deed that was signed using electronic signature and/or remotely witnessed),

could engage a practitioner (in a jurisdiction that does not currently allow the use of electronic signatures and/or remote witnessing) to assist them to obtain a grant of probate or a reseal, to assist with property matters, and/or to act generally.

Conclusion

Although not formally recognised in many jurisdictions, the use of electronic signatures and remote witnessing in succession planning is here, and as a result of the pandemic they are more relevant than ever. It is inevitable that the use of electronic signatures and remote witnessing will continue. Practitioners should be prepared for this, and should begin to adapt. Those who adapt and embrace technology in their practices will have the ‘competitive advantage’ and will lead the future. Like the move to online and app-based banking, those who refuse to adapt may be left behind, or will be forced to play catch up in the near future when technology in document execution becomes a competitive necessity.

Kimberley Martin
Partner, WMM Law