Table of Contents
- What Kinds of Documents Require a Witness?
- Who Can Be a Witness?
- What Documents Will a Witness Need to See?
- Primary Photographic Identification Documents
- Primary Non-Photographic Identification Documents
- Secondary Identification Documents
- Remote Witnessing of Legal Documents
- Key Takeaways
- Frequently Asked Questions
Certain documents, such as contracts, must be signed before a witness. The rationale for this is to minimise the risk of people fraudulently entering into agreements and other legal documents. A witness serves as an impartial party who can verify the authenticity of the signing process and confirm that all parties involved are willingly and knowingly entering into the agreement. Further, provided the witness keeps a copy of the document, if the parties produce two documents at some point in the future, the witness will be able to identify which document is authentic.
This article explores who can witness your signature on a legal document and what documents they may require you to produce to validate the signing process.
What Kinds of Documents Require a Witness?
Common examples of documents that require witness signatures include:
- deeds;
- wills;
- guarantees;
- official applications (such as those confirming someone’s identity);
- mortgage documents; and
- other financial documents.
In some cases, certain documents legally set out requirements for:
- a witness signature;
- the witness signature is to be provided by a person with a specific set of qualifications. You can find examples of this requirement in statutory declarations and affidavits which require an ‘authorised witness’ (e.g. solicitors, justice of the peace, etc.); and
- requirements on how the witness signature is signed in the document.
However, witnessing a signature is not legally required for all contracts. Moreover, a contract may be legally binding without a witness to the signature.
Who Can Be a Witness?
Generally, there is no need for a witness to have an official status. However, a witness must:
- be over 18 years of age;
- be of sound mind;
- not be under the influence of drugs;
- not be a party to the document or have any financial interests in the document; and
- have known you for at least one year or have taken reasonable steps to verify your identity.
However, certain documents have special requirements for a witness. For example, in NSW, statutory declarations and affidavits require an ‘authorised witness’. An ‘authorised witness’ must be any of the following:
- justice of the peace;
- notary public;
- commissioner of the court for taking affidavits;
- legal practitioner, i.e., an Australian lawyer who is granted a practising certificate; or
- any person authorised to administer an oath.
Under Commonwealth law, statutory declarations and affidavits require an ‘approved witness’, which has a largely identical meaning to ‘authorised witness’.
It is important to note that you cannot witness your own statutory declaration or affidavit, even if you are an approved or authorised witness. This is not allowed because the witness needs to be an impartial third party.
Additionally, if someone was previously an approved or authorised witness but has retired or changed occupation, they are no longer considered an approved or authorised witness. This rule also applies to legal practitioners who have retired.
What Documents Will a Witness Need to See?
If your witness has known you for a year or more, they will not need to do anything to verify your identity. However, if your witness has not known you for a year, they should take steps to verify your identity before they witness your signature. To verify your identity, your witness will probably ask you to produce documents, preferably containing a recent photograph, confirming you are who you say you are. You will generally need to show your witness either:
- one primary photographic identification document; or
- one primary non-photographic and one secondary identification document.
Primary Photographic Identification Documents
Examples of primary photographic identification documents include:
- a current Australian or overseas drivers licence;
- a current Australian or overseas passport;
- an Australian or overseas passport that expired within the last two years; and
- a proof of age card issued under the Photo Card Act 2005 (NSW).
Primary Non-Photographic Identification Documents
Examples of primary non-photographic identification documents include:
- an Australian State or Territory issued birth certificate or birth extract;
- an Australian citizenship certificate;
- a pension card issued by Centrelink; and
- a birth certificate issued by a foreign government or the United Nations or a foreign citizenship certificate, with English translation prepared by an accredited translator if necessary.
Secondary Identification Documents
Examples of secondary identification documents to prove your name and residential address include:
- a notice from the Australian Taxation Office issued within the last 12 months;
- a notice from Centrelink issued within the last 12 months; and
- rates notices or a utility bill issued by a local council, water authority, gas or electricity provider within the last three months.
With a copy of the signed documents, your witness will probably ask to keep a copy of the document you produce for their records. This is in the event they are requested to confirm whether a document is authentic in the future.
Remote Witnessing of Legal Documents
During the COVID-19 pandemic, Australian states and territories introduced measures to allow for remote, online witnessing of documents. Some states made these measures permanent, such as New South Wales and Victoria. However, in other states and territories, these measures have expired. Remote witnessing is no longer allowed in:
- Western Australia;
- Tasmania;
- Northern Territory; and
- the ACT.
Where remote witnessing is still allowed, the parties must communicate through an audio-visual link, such as Zoom, following relevant state or territory requirements.
To legally witness the contract, you must see the relevant person signing the document in real time over an audio-visual link. You will also sign the document or an exact copy to confirm that you witnessed the signature. The exact copy of the remotely witnessed document must include every page or part of the document and every signature within it. You must be reasonably satisfied that the document you sign is the same document or an exact copy. You must then validate a statement confirming that all legal obligations were met in signing the document according to applicable laws.
Either a physical signature or an electronic signature may be used to remotely sign a document. There is no specific method for making an electronic signature as long as the method identifies the person and indicates their intention to approve the document. Identity might be shown by a typed name, a personal mark, a personal email, or the use of an online ID verification method.
It is important to note that you may still need to follow certain witnessing requirements for different kinds of documents.
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This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
Key Takeaways
Having a document correctly witnessed is important to yourself and the witness. Witnesses may be subject to a fine if they fail to comply with their obligations. Additionally, you need to have a capable witness. This can help prevent situations and disputes in your contract because a third party can verify the document and affirm that all relevant parties have signed it. Therefore, it is in your best interest to comply with these obligations.
If you need help with witnessing requirements for your contracts, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Not all contracts need a witness. For example, a simple agreement between two parties likely will not need a witness, although it is in your best interest to have one. However, certain contracts will need a witness. For example, a deed or a will both need witnesses. In the latter case, the law requires a witness to confirm that the correct party has signed the contract and for the agreement to be legally binding. Without a witness signature, the document may not be legally enforceable.
Generally, a witness does not need a particular status. However, the witness must be over 18 years old and of sound mind. Most importantly, they must verify your identity if they have not known you for over a year. Additionally, some documents require an authorised witness, such as for a statutory declaration or affidavit. There may also be legal requirements regarding how the witness’s signature must be signed.
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