Temporary changes have been made to allow for some documents to be witnessed remotely to maintain physical distancing to help slow the spread of coronavirus (COVID-19).

You can now witness the following documents remotely:

  • affidavits
  • deeds and mortgages
  • statutory declarations
  • powers of attorney documents
  • wills, codicils and other testamentary instruments.

You cannot remotely certify copies of original documents. See our Certified copies of original documents page for existing processes.

The new regulations do not override existing ways to witness documents. Where it is safe to do so, you may continue to use these existing ways of witnessing documents.

The temporary changes are part of the COVID-19 Omnibus (Emergency Measures) Act 2020 (the Act) and the related COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations). The changes are in place until the Act is revoked. Documents validly executed in accordance with the Act or the Regulations will remain valid when the Act is revoked.

Electronic signatures

You can electronically sign a document in a number of ways including signing a PDF on a tablet, smartphone or laptop using a stylus or finger. Where an electronic signature is used the person signing must write or stamp under their signature a statement indicating that the document was electronically signed in accordance with the Regulations.

An example of a valid statement is:

This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

It is possible to witness documents remotely without using an electronic signature. For example, by physically signing a hardcopy document and scanning the document before sending to another person while maintaining an audio-visual link (e.g. using Zoom or Skype).

Preserving existing requirements for witnesses

These changes preserve the existing requirements of witnesses, either in statute or common law, to be satisfied of certain matters or to certify certain matters including:

  • the identity of the signatory
  • that the signatory has decision making capacity
  • that there is no defect such as undue influence, duress or unconscionable conduct apparent in the transaction
  • that the signatory is signing freely and voluntarily.

If a witness is not able to satisfy themselves of these matters by audio-visual link, the witness should not execute the document.

How to record that the document was witnessed remotely

A signatory must write or stamp under their signature a statement indicating that the document was witnessed using an audio-visual link in accordance with the Regulations.

This means that when documents signed or witnessed under the Regulations are used in the future and the Regulations have been repealed, it is clear why they do not follow the usual form set out in the relevant legislation.

An example of a valid statement is:

This document was witnessed by audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.

There are also additional requirements for each type of document covered by the Regulations, as outlined below.

Affidavits

The COVID-19 Omnibus (Emergency Measures) Act 2020 allows:

  • deponents and affidavit takers to sign or initial a document electronically
  • witnessing of affidavits to be completed over the phone or by using video conferencing technology
  • scanned hard copies or electronic copies to be used instead of the original copy.

A statement must be added to the jurat that the affidavit is witnessed in accordance with the Act.

For more information, see our Affidavits page.

Deeds and mortgages

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 allows:

  • each signatory to sign the document or a copy of the document (electronic or hard copy)
  • each signatory to use an electronic signature
  • witnessing to occur via audio-visual link.

The person who will receive the document must give consent to the execution of the document by electronic signature. Consent may be withheld for reasons such as concerns about the integrity of a document. A reluctance to use electronic signatures is not, on its own, a sufficient reason to withhold consent.

Each witness that witnesses via audio-visual link must include a statement indicating that the document was witnessed using an audio-visual link in accordance with the Regulations.

If signatures are applied to different copies of a document, each signatory and each person who needs to give consent must receive a copy of each document that has a signature on it.

In relation to property transactions, Land Use Victoria’s Registrar’s Requirements for Paper Conveyancing Transactions are not affected by these Regulations.

The electronic signing of deeds by corporations is covered by the Commonwealth Government’s Corporations (Coronavirus Economic Response) Determination (No.1) 2020.

Statutory declarations

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 allows statutory declarations to be made electronically and/or remotely.

All steps must be completed on the same day.

Both the declarant and the witness are still required to fulfil all existing obligations under the Oaths and Affirmations Act 2018.

The Regulations also allow a declarant to be assisted by audio-visual link (for example through interpretation services).

For more information on how to make a statutory declaration, see our Statutory Declarations page.

Powers of attorney documents

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 allows Powers of Attorney (including those signed under direction) to be electronically signed and witnessed with all persons in separate spaces connected by audio-visual link.

Each witness is still required to fulfill all existing obligations under the Powers of Attorney Act 2014, including section 36 of that Act.

The following steps must occur on the same day:

  1. The witnesses observe the principal (or directed signer) sign the document, either electronically or on hard copy (and the signature of any witnesses physically present).
  2. A copy of the document is transmitted, for example by email or fax, to the first remote witness who:
    • signs either electronically or on a printed hard copy
    • writes a statement that the document was witnessed via audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
    • transmits a copy (for example by email or fax) to the next remote witness (if any) who repeats these steps.
  3. A copy of the document signed by all witnesses is returned to the principal (or directed signer). The principal (or directed signer) writes on the copy of the statement that:
    • the copy is a true copy of the power of attorney signed by the person
    • the conditions in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been met
  4. The principal (or directed signer) must then sign and date the statement.

The Regulations do not include Advanced Care Directives and appointments of Medical Treatment Decision-Makers made under the Medical Treatment Planning and Decisions Act 2016, as this Act is not a Justice Act for the purposes of making these Regulations.

For more information on Powers of Attorney, see the Plan for the Future (External link) section on the Office of the Public Advocate website.

Wills, codicils and other testamentary instruments

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 allows Wills (including those signed under direction) to be electronically signed and witnessed if each witness is connected to the principal by audio-visual link.

Each witness is still required to fulfill all existing obligations under the Wills Act 1997.

The following steps must all occur on the same day:

  1. The witnesses observe the principal (or directed signer) sign the document either electronically or on hard copy (and the signature of any witnesses physically present).
  2. A copy of the document is transmitted, for example by email or fax, to the first remote witness. The remote witness:
    • signs either electronically or on a printed hard copy
    • writes a statement that the document was witnessed via audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
    • transmits a copy (for example by email or fax) to the next remote witness (if any), who repeats these steps.
  3. A copy of the document signed by all witnesses is returned to the principal (or directed signer). The principal (or directed signer) writes on that copy a statement that:
    • the copy is a true copy of the will signed by the person
    • the conditions in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been met.
  4. The principal (or directed signer) signs and dates the statement.

The result is that there is one copy of the will on which all the signatures and statements appear. This copy is the will.

If a will is to be altered, revoked or revived, the same procedures apply.

For more information on wills, codicils and other testamentary instruments, see the Wills and Estates (External link) section on the Victoria Legal Aid website.