By Darryl Browne -
Key decisions
- Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)
- COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
- Wareham v Marsella [2020] VSCA 92
- Bloore v Chief Commissioner of State Revenue [2020] NSWSC 502
- Marchesi v Oldridge [2020] WASC 127
- Rodny v Weisbord [2020] NSWCA 22
- Re Marshall [2020] QSC 109
- Serwin v Dolso [2020] NSWSC 370
- Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552
- Megerditchian v Khatchadourian [2019] NSWSC 1870
- Megerditchian v Khatchadourian (No 2) [2020] NSWSC 112
- Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192
- D19-20\096 [2020] SCTA 219
Implications of the electronic witnessing provisions
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) commenced on 22 April 2020 and is due to expire on 22 October 2020, unless Parliament decides otherwise. The Regulation allows for the witnessing (but not signing) of some documents (including wills, powers of attorney and enduring guardian appointment) by audio visual link. Various requirements need to be satisfied. Some members of the Elder Law, Capacity and Succession Committee have prepared a paper on the Regulation and its impact on the practice of Wills and Estate practitioners. The paper will be an invaluable resource for any practitioner intending to use AVL technology to witness estate planning documents. The authors conducted a webinar on the subject for the Law Society. The webinar included a demonstration of electronic witnessing a will and an enduring power of attorney. The clear message from the demonstrations is that additional time needs to be allowed to properly witness documents by AVL and there needs to be meticulous attention to detail to comply with the Regulation.
Victoria introduced COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 on 12 May 2020. The approach taken by the Victorian Regulations is different from that taken in NSW. For instance, electronic signing and remote signing by direction are included under the Victorian scheme. In due course, close attention to the detail of the Victorian scheme may be needed. Examples are where a reseal is sought in NSW of a Victorian will made pursuant to their Regulations, or where interstate recognition is sought of an enduring power of attorney made in Victoria.
