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Witnessing a person’s signature on a legal document is an important step in ensuring the document is valid and enforceable. You need a witness to confirm that the correct party has signed the agreement and no fraud has occurred, such as someone signing the agreement on another person’s behalf. In many circumstances in Australia, it is legal requirement. This article will explain the essential elements of being a witness and how you can witness documents correctly.

What Documents Require a Witness Signature?

In Australia, many legal documents require that an individual’s signature is witnessed by another person. These documents include:

In some cases, the law will require certain documents, like statutory declarations or affidavits in legal proceedings, to have the signature witnessed by a person with specific qualifications (an authorised witness). There are also specific requirements for the witness signature on will documents such as standard wills or powers of attorney.

Note: Not all contracts need to be witnessed. For example, if you are contracting between two companies, you do not need to worry about witnesses as long as you properly execute your contract. 

Who Can Witness a Signature?

In general, a witness must:

  • be over 18 years of age;
  • know the person whose signature they are witnessing;
  • not be under the influence of drugs;
  • be of sound mind and mental capacity;
  • not be a party to the document or have any financial interest in it; and
  • not be a beneficiary if the document is a trust or self-managed superannuation fund.

What Is an Authorised Witness?

Certain legal documents, such as statutory declarations and affidavits, require an ‘authorised’ witness to sign them in Australia. There are different requirements in each state and territory and the Commonwealth for authorised witnesses. However, authorised witnesses usually include a:

  • solicitor or barrister;
  • justice of the peace;
  • Notary Public;
  • senior officer of the court; and
  • other professions including a doctor, senior police officer or pharmacist.

Some people choose to have a Notary Public witness their signature. A Notary Public has to have been a lawyer for at least five continuous years, must currently hold an Australian practising certificate and must have completed the Notarial Practice Course. This person can also notarise documents, such as powers of attorney, wills, deeds and contracts, so that they can be enforced overseas.

Steps to Correctly Witness a Signature

When witnessing a signature, the following requirements apply. You must:

  1. ensure the person signs the document in front of you. It is not acceptable for them to provide you with a signed document that someone else has already signed and ask you to witness it;
  2. not witness an electronic signature. The person must sign the document in front of you in real time. Physical presence is neccessary;
  3. use blue ink or black ink, as the original documents will scan more clearly for electronic versions of the document;
  4. check the person has signed where required on all pages of the document;
  5. initial any changes that the person makes after signing the document;
  6. state that you have known the person signing for at least one year, or have taken steps to verify their identity, such as viewing their signature on a current driver’s licence (this is only a requirement in New South Wales); and
  7. check what additional details you need to provide when witnessing, as set out on the document and provide them correctly. This may include the date, your occupation and address.

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How Do I Verify the Identity of the Person Signing a Document?

If you have known the person signing the document for less than a year, you should take steps to verify their identity. The requirements of this may vary depending on the type of document being signed.

For example, some real property or finance documents may have stricter requirements to provide details of verification documents. Therefore, you should check the document before you witness the signature. In general, verification documents should include a primary identification document such as a current:

  • drivers licence;
  • passport; or
  • proof of age card.

Can a Family Member Witness a Signature?

There is no general rule that says a family member or spouse cannot witness a person’s signature on a legal document, as long as you are not a party to the agreement or will benefit from it in some way. However, it is generally best to avoid it as it can raise perceptions of bias and questions about your credibility as a witness, even if your relative is a legal practitioner. It may also cause a court to question the enforceability of the legal document at a later date. Therefore, where possible, it is better for an independent, neutral third party to be the witness. 

Temporary COVID-19 Laws About Witnessing

In Australia, in response to the COVID-19 pandemic, temporary laws have been introduced to allow the witnessing of documents by audio-visual link. This allows legal documents to be signed before a witness in cases where the parties are in lockdown and are unable to meet in person. In general, this involves the parties having a video call and the signing party positioning their camera so the other party can see them sign the document using a handwritten signature. They then scan and send the witness a copy of the signed document, and the witness signs a copy of this document. Any document signed this way must refer to the relevant legislation in their state or territory.

Key Takeaways

If someone asks you to witness their signature on a legal document, it is crucial you follow the right steps, or the whole document may be void. Therefore, it is a good idea to take your time to ensure:

  • you are entitled to witness the signature in the circumstances;
  • the document is signed correctly; and 
  • you have followed any witnessing requirements, such as checking the identification of the person signing if you have not known them for more than a year.

If you have any questions about witnessing a signature or need other legal advice, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

Why do I need a witness to sign legal documents?

A witness is needed to confirm that the correct party has signed the agreement and no fraud has occurred. Therefore, without a witness, an agreement may not be enforceable.

Can a minor witness a signature?

No. A witness must be over 18 years old.

Which documents require an authorised witness?

Certain legal documents, such as statutory declarations and affidavits, must be signed by an authorised witness.

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