Most contracts, deeds, title registry forms and statutory declarations require a person to witness the signature of the person making the declaration or entering into the contract or deed. There are a number of obligations in witnessing a signature, and to witness statutory declarations, the witness must be an ‘authorised witness’. A witness must not be a party to the instrument.
Obligations as a Witness
There are varying requirements when legal documents are executed – this depends on who is signing the document (individual or company) and the jurisdiction in which the document is operating.
In addition to physically witnessing the signature, the witness has a number of important obligations including:
- checking the identity of the signing person by asking them if they are the person whose name is on the form;
- remind the person that they are claiming that the statements are true and that there are penalties for false statements;
- check that the declaration does not include any ‘blanks’ as all fields on the form need to be filled in and includes the attachments to which it refers.
List of Authorised Witnesses
Authorised witnesses vary depending on the type of document and who it is be lodged with. Usually, the eligible witness must be someone over 18 years of age, is not a party to the transaction and has taken reasonable steps to confirm the identity of that person.
There are a number of people who may be able to witness a statutory declaration. A Commonwealth statutory declaration under the Statutory Declarations Act 1959 will need to be witnessed by a person who is both on the list of authorised witnesses and has a connection to Australia. A statutory declaration may be made before a person on the list of authorised witnesses in the Statutory Declarations Regulations 1993 (Cth). If the document is a trust deed or an SMSF deed, then in addition to the above, the witness should not be a beneficiary of the trust or fund.
Proof of Identity
The witness must also confirm the identity of the signing party, for example by providing documentary proof of identity showing a photo and signature. This must be an original copy such as a driver licence or passport.
Failure to Comply with Obligations or False Witnessing of Documents
Documents such as applications, dealings, contracts and deeds are important, legally binding documents. Failure to carry out witnessing obligations may be subject to fines. Purporting to witness a signature in the absence of the relevant person is a fraudulent act.
In some cases you may choose to have a Justice of the Peace or a Notary to witness signatures for your legal documents. Each State and Territory has public notary registers which include notaries available to witness documents. You can find these details online, or contact your local council for further information.
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