By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group
In our earlier blog, COVID-19, self-isolation, and witnessing documents, we looked at the difficulties in executing and witnessing documents in isolation or quarantine. NSW has published legislation which may fix this however no regulations have been made as to how this fix will work. Now in response to the ongoing COVID-19 pandemic, the Queensland Government has just released new guidelines with respect to the witnessing of documents under various pieces of Queensland legislation, being the Land Title Act, Land Act and Water Act Titles, if eConveyancing is not available.
Under these new guidelines, if a person who needs to sign an instrument under these Acts is in isolation or in quarantine, it is now acceptable for a witness to view the person signing the instrument via some form of video link (Skype, Zoom, etc). The requirements for this form of witnessing are as follows:
- The person signing the instrument must hold the instrument up to the video link to enable the witness to confirm it is the relevant instrument;
- The witness must make a note or take a screenshot of the instrument being held up to the camera;
- If possible, the person signing the instrument should take a photo of the instrument and send the photo to the witness;
- The witness verbally confirms with the person what instrument they have signed, either through video link or by telephone;
- The instrument should then be collected and delivered/posted to the witness. Alternatively, if this is not possible, the instrument could be scanned or photographed and emailed to the witness.
- The witness will then compare the instrument to the photo/notes, and if there are no changes, sign the instrument (either the original or printed, signed copy) with wet ink.
The guide recommends that taking a photo and sending that photo of the instrument to the witness to be printed should be a last resort due to a potential decline in the quality of the image.
NSW is still waiting for regulations to be made as to how it will address these issues, although the above may be a reasonable guide. It demonstrates how practically difficult obtaining a ‘wet ink’ signature of both an executing party and witness can be, on the one document.
The Queensland guide can be read in full here.