Table of Contents
- What Documents Require a Witness Signature?
- Who Can Witness a Signature?
- What is an Authorised Witness?
- Steps to Correctly Witness a Signature
- How Do I Verify the Identity of the Person Signing a Document?
- Can a Family Member Witness a Signature?
- COVID-19 Laws About Witnessing
- What Happens if Something Goes Wrong?
- Key Takeaways
- Frequently Asked Questions
Witnessing a person’s signature on a legal document is an important step in ensuring the document is valid and enforceable. Changes to the law have also made it possible for you to witness a signature electronically. 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 a legal requirement. This article will explain the essential elements of being a witness and how to witness documents correctly.
What Documents Require a Witness Signature?
In Australia, many legal documents require that another person witnesses an individual’s signature. These documents include the following:
- general contracts;
- agreements;
- deeds;
- guarantees;
- mortgage documents; and
- other finance agreements.
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.
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 for authorised witnesses in each state, territory, and the Commonwealth. 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 must:
- be a lawyer for at least five continuous years;
- hold an Australian practising certificate; and
- complete the Notarial Practice Course.
This person can also notarise documents, such as powers of attorney, wills, deeds and contracts, so they are enforceable 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 unacceptable for them to provide you with a signed document that someone else has already signed and ask you to witness it. |
| 2 | Use blue ink or black ink, as the original documents will scan more clearly for electronic versions of the document. |
| 3 | Check the person has signed where required on all pages of the document. |
| 4 | Initial any changes that the person makes after signing the document. |
| 5 | 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 (as best practice). Check the specific requirements in the applicable states, as these may vary depending on the document type you are witnessing and the applicable laws. |
| 6 | Check what additional details you need to provide when witnessing, as set out in the document and provide them correctly. This may include: + the date; + your occupation; and + your address. |
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.
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:
- driver’s licence;
- passport; or
- proof of age card.
Can a Family Member Witness a Signature?
No general rule states that family members or spouses cannot witness a signature, provided they are not a party to the agreement or benefiting 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 the relative is a legal practitioner. It may also cause a court to question the enforceability of the legal document at a later date. Therefore, it is better for an independent, neutral third party to be the witness where possible.
COVID-19 Laws About Witnessing
You can now witness signatures remotely using audio-visual technology, a practice that has become widely accepted across Australia. This practice began as a temporary measure during COVID-19 and has now become a permanent feature in most states and territories. These regions have incorporated permanent legislative provisions into their electronic transactions Acts to support virtual witnessing. This change allows you to execute legal documents without needing the physical presence of all parties.
Typically, the signatory and the witness will conduct a real-time video call. During this call, the signatory will position their camera to provide an unobstructed view while they apply their handwritten signature to the document. Afterwards, you will transmit the signed original document electronically to the witness, who will then counter-sign a copy to confirm it matches the witnessed document. Since the introduction of electronic witnessing, many businesses now prefer to have signatures witnessed electronically whenever possible.
Afterwards, the witness must add a statement to the document specifying the method used to witness the signature and that the document was witnessed according to section 14G of the Act.
The rules for electronic witnessing are generally consistent across all states. Nevertheless, you should verify that no additional requirements apply in the relevant state of the witness. Additionally, check if the document can be witnessed via an audio-visual link in that state.
What Happens if Something Goes Wrong?
Failing to properly witness a signature on a legal document can lead to serious consequences. If you do not follow the witnessing requirements correctly, the entire document might be invalid or unenforceable in court. This could mean that the rights, obligations, and agreements in the document may not be legally binding for the parties involved.
In a commercial setting, an improperly witnessed contract could stop your company from enforcing the terms against the other party and recovering damages for any breach.
For important personal legal documents, such as wills or powers of attorney, improper witnessing could make the documents inadmissible and prevent the person’s intended wishes from being carried out upon their incapacity or death.
Besides the document becoming unenforceable, improper witnessing could also expose the witness to potential legal liability if found negligent or if they engaged in misconduct while carrying out their duties. Therefore, it is essential for any witness to carefully follow all prescribed witnessing requirements and processes. To meet witnessing requirements, make sure of the following:
- the witness is an independent, neutral third party;
- all changes are initialled; and
- the witness can clearly see the signee and their signature when they sign.
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.
Key Takeaways
When someone asks you to witness their signature on a legal document, you must follow the correct steps to prevent the document from becoming invalid. Therefore, it is important to take your time to verify the following:
- you are authorised to witness the signature in these circumstances;
- the document is signed correctly; and
- you have adhered to 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 questions about witnessing a signature, our experienced contract lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A witness must confirm that the correct party has signed the agreement and no fraud has occurred. Therefore, without a witness, a contract may not be enforceable.
No. A witness must be over 18 years old.
Certain legal documents, such as statutory declarations and affidavits, must be signed by an authorised witness.
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