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, commonly need to be signed before a witness. The rationale for this is to minimise the risk of people fraudulently entering into agreements and other legal documents. Further, provided the witness keeps a copy of the document, if the parties produce two different 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.
What Kinds of Documents Require a Witness?
Common examples of documents that require witness signatures include:
- 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 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. For example, two companies can properly execute a contract using the director and secretary’s signatures.
Who Can Be a Witness?
Generally, there is no need for a witness to have an official status, except for certain documents including statutory declarations. 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.
You may also want to have a notary public witness your signature, although this is not a requirement. A notary public will generally be a legal practitioner or justice of the peace.
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.
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.
Together 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.
If you are a company director, complying with directors’ duties are core to adhering to corporate governance laws.
This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
Remote Witnessing of Legal Documents
During the COVID-19 pandemic, Australian states and territories introduced measures to allow for remote, online witnessing of documents. Accordingly, parties are no longer required to meet in person to witness a contract signature. Instead, to witness a signature virtually, the parties must communicate through an audio-visual link (such as Zoom) that allows the witness to communicate with the signee and see the signee sign the document. The witness must then validate a statement confirming that all legal obligations were met in signing the document in accordance with applicable laws.
These new virtual witnessing measures have now been made permanent. However, it is important to note that you may still be required to adhere to certain witnessing requirements for different kinds of documents.
Having a document correctly witnessed is important, both to yourself and the witness. If a witness fails to comply with their obligations, they may be subject to a fine. 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 regardless.
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 will require a witness. For example, a simple agreement between two parties likely will not require a witness, although it is in your best interest to have one. However, certain contracts will require a witness. For example, a deed or a will both require witnesses. In the latter case, a witness is required under law to confirm that the correct party has signed the contract and for the agreement to be legally binding and thus, without a witness signature, the document may not be legally enforceable.
Generally, a witness does not require a particular status. However, the witness must be over 18 years of age, and they must be of sound mind. Most importantly, they must be able to verify your identity if they have not known you for over a year.
Additionally, depending on the nature of the document, some documents require an authorised witness (e.g. for a statutory declaration or affidavit) or have legal requirements around how the witness signature must be signed.
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