Virtually witnessed documents, are they valid?
The main purpose of having a witness to a document is to authenticate that the person signing was in fact the person noted on the document. The implementation of electronic signatures was already common practice and with the advancement of technology, was always likely to increase in use.
In New Zealand, however, law requires that for an electronic signature to be legitimate, it must comply with the following:
- The document must identify the signatory.
- The electronic signature is as reliable as appropriate for the purpose of the document being signed.
- A signature is presumed to be ‘as reliable as appropriate’ if it has been provided by the signatory with their knowledge and consent. It must be an accurate signature and the electronic document cannot be changed once it has been signed.
- The person receiving the signature fully permits the use of it in electronic form.
These requirements are to ensure that electronically signed documents are correctly executed and that the signatory is fully aware that they are legally bound to the documents which they electronically sign. Just because the document was not signed in ‘wet ink’, does not mean the document or contract does not exist. Witnessing serves as a safeguard against forgery and duress, however it has been argued that face to face interaction is still the best way to achieve this.
The onset of the Covid-19 pandemic forced businesses and individuals to find alternative ways to sign documents that required witnessing. In response to Covid-19, the New Zealand Government implemented multiple immediate modification orders under section 15 of the Epidemic Preparedness Act 2006 relating to the requirements of signing and witnessing wills, enduring powers of attorney, deeds, oaths and declarations. These temporary orders modified the witnessing requirements of specific legislation and allowed for certain documents to be witnessed virtually through the use of platforms such as Zoom, Skype and FaceTime.
Many banks and commercial institutions in New Zealand are now allowing electronic signatures and virtual witnessing, provided that a clause is inserted into each document which specifies that the documents were virtually witnessed and the signatory has been adequately identified in accordance with Anti-Money Laundering legislation.
So yes – virtually witnessed documents are valid. However, caution should be taken when witnessing is required for a contract that is covered under the law of another country or jurisdiction that has not yet introduced or allowed for remote witnessing.