Electronic signing and witnessing of legal documents

Electronic signing and witnessing of legal documents

The world has changed significantly in the last few years following the covid lockdown experience and a lot of archaic legal requirements have suddenly changed almost overnight it seems. We can now commence court proceedings by filing documents through an online court portal, court hearings and mentions via video link are now common place, and the ability to electronically sign and witness documents that was introduced in NSW during the lockdown appears to be here to stay.

You will no doubt remember that not too long ago, in order to sign a loan or other type of contract you had to physically put pen to paper and “wet sign” the printed hardcopy document.  But that has now changed, an electronic signature can now be regarded as legally binding provided it meets the requirements under the Electronic Transactions Act 2000 NSW. The requirements that need to be met are essentially:

  1. There must be a method used to identify the person signing and they have to indicate their approval of the document,
  2. The method of signing need to be reliable and appropriate for the communication; and
  3. Both parties to the contract have to consent to the use of electronic signatures.

There is plenty of different online software available now that can meet these requirements. Generally a link to a document can be sent to a client’s email address, you can then log into the document to be signed via the email, open the document to review it on your computer screen, and then “sign” by clicking in the signature panel in the electronic document and entering your signature electronically. The signature will then be time/date stamped by the software at the time of signing and the document cannot be altered after it is signed.

The main issue I have experienced with electronic signing is where a signature on a document also needs to be witnessed. Following a change in a legislation after the lockdown, solicitors and JP’s and are now able to witness the signing of documents like Affidavits and Statutory Declarations via video link but this so far has been limited to documents being physically signed with pen to paper. Unfortunately, there is currently no method that I am aware of where a document being signed electronically could be witnessed via video in a manner that complies with the legislation. This is because when witnessing the signature via AVL, you need to watch the person identified actually signing the document in real time.

So while it does have limitations, the convenience of being able to post a document to a client in another state, and witness them signing it via Zoom or Microsoft Teams, or the ability to email a link to an agreement to a client to sign online, has been a significant advance in recent years that I for one am happy has continued post lockdown.

KC Hilton, WNB Legal