Australian Unity Trustees welcomes the Queensland and NSW State Government’s move to allow video conferencing technology for the signing and witnessing of Wills and other documents, but said confusion remains on the precise meaning of the term ‘virtual’.

Anna Hacker, National Manager Estate Planning at Australian Unity Trustees, said it is heartening to see the NSW and QLD State Governments take proactive steps in making it easier to put estate planning arrangements in place at this time. However, updated legislation still requires Wills, Powers of Attorney, Deeds and other documents to be remotely witnessed as part of a meeting.

“In our discussions with clients there has been some confusion about having documents electronically witnessed as opposed to having them remotely witnessed – which are two very different things,” Ms Hacker said.

“Some of the confusion stems from the title of the updated legislation (electronic transactions amendment) which can be misconstrued to mean that documents like Wills, Powers of Attorney and Deeds can be signed via an email exchange. This is not the case; everyone is still required to physically sign with a pen.

“In the case of witnessing a signature, the legislation is clear that the person witnessing the signing of a document – virtual or otherwise – must be able to observe the person signing the document in real time, attest and confirm the witnessing of the signature, be satisfied that the document being signed is the same document or a copy of the document signed by the signatory and specify the method used to witness the signature of the signatory.”

As other states and territories look to follow suit, Ms Hacker said while COVID-19 is the catalyst for the temporary measures, the changes are a step towards the legal industry embracing advancements in technology beyond the pandemic.

“I did not expect to see legislation advance this quickly in my lifetime, it’s an exciting development that could be the circuit-breaker to move forward this area of the law by setting a precedent for future circumstances where remote witnessing of Wills may be appropriate,” she said.

“However, the process outlined in the regulation is very technical and precise, so it’s critical individuals seek legal advice when undertaking their estate planning.”

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