Remote Witnessing in NSW: AVL Rules and Electronic Signing

In New South Wales you can witness a will, a deed, an affidavit or a statutory declaration over a video link under section 14G of the Electronic Transactions Act 2000, but remote witnessing does not let you sign those documents electronically. This is the part most people get wrong. The law changed how you watch someone sign. It did not change how the person has to sign. For NSW wills, enduring powers of attorney, enduring guardianship appointments, affidavits and statutory declarations, wet ink on paper is still the only option.

Key Points

• Permanent since 29 November 2021. The Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) turned the temporary pandemic scheme into ongoing law.
• 6 document types are covered. Wills, powers of attorney and enduring powers of attorney, deeds and agreements, enduring guardianship appointments, affidavits including annexures, and statutory declarations.
• 4 things the witness must do. Watch the signing live, sign the document or a copy, be reasonably satisfied it is the same document, and endorse it with a statement.
• Electronic signing depends on the document. Deeds can be created, signed and witnessed electronically under section 38A of the Conveyancing Act 1919. NSW wills and affidavits cannot.
• You do not have to be in NSW. Section 14I lets both people sit anywhere, as long as the document is governed by NSW law.

What is remote witnessing under section 14G?

Remote witnessing is watching someone sign a document in real time over a video link instead of standing next to them, and section 14G of the Electronic Transactions Act 2000 (NSW) is the provision that makes it valid. It sits in Part 2B of the Act, which was introduced as a temporary measure in 2020 and made permanent on 29 November 2021.

Section 14F defines the technology you are allowed to use:

"audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing."

Two words in that definition carry all the weight. Continuous means the connection cannot cut out while the person is signing. Contemporaneous means you are watching it happen at the same moment, not reviewing a recording afterwards. An ordinary video conferencing platform is fine. A phone call is not, because there is no video, and a video someone emails you later is not, because you were not there while the pen moved.

Section 14G does not change who is qualified to witness a particular document. If a statutory declaration needs an authorised witness, it still needs one. All section 14G changes is the requirement that the witness be physically in the room.

Which documents can be witnessed by audio visual link?

Six categories of document are covered, and section 14F lists them. The definition is:

"document includes the following documents, but does not include a document excluded from this definition by the regulations— (a) a will, (b) a power of attorney or an enduring power of attorney, (c) a deed or agreement, (d) an enduring guardianship appointment, (e) an affidavit, including an annexure or exhibit to the affidavit, (f) a statutory declaration."

The regulations currently exclude nothing, so all six are available.

Two limits are worth knowing before you rely on this.

The first is certifying copies. You cannot look at an original document over a video link and certify a copy as a true copy. The Law Society of NSW guidance is blunt about it:

"No. In order to certify a document as a true and correct copy of the original, you must carefully inspect the original document in person in the usual way."

Remote witnessing and certifying copies are different jobs, and only one of them moved online.

The second is Commonwealth documents. The Act defines the law of this jurisdiction as any law in force in NSW, written or unwritten, but not a law of the Commonwealth. So section 14G does not automatically reach documents required under federal law, including affidavits filed in the Federal Circuit and Family Court. Federal courts generally pick up the law of the jurisdiction for the action in front of them, but the arrangements differ, so check the relevant federal practice direction before you assume a remotely witnessed affidavit will be accepted.

What are the steps to witness a document remotely?

Section 14G(2) sets out four obligations, and section 14G(3) sets out how the paperwork gets to you. The whole sequence usually takes one video session plus a few minutes afterwards.

The four obligations in section 14G(2) are these:

"A person witnessing the signing of a document by audio visual link (the witness) must— (a) observe the person signing the document (the signatory) sign the document in real time, and (b) attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, and (c) be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and (d) endorse the document, or the copy of the document, with a statement— (i) specifying the method used to witness the signature of the signatory, and (ii) that the document was witnessed in accordance with this section."

Section 14G does not change how many witnesses a document needs. A will made in NSW still requires two witnesses under section 6 of the Succession Act 2006 (NSW), so both have to be on the same video link watching at the same moment, and each of them has to complete all four obligations separately.

The endorsement in paragraph (d) is the step people forget. The Act does not force you to use exact words, but the statutory Note to section 14G(2) gives you a model:

"This document was signed in counterpart and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000."

If the document was not signed in counterpart, drop those words and describe what actually happened instead.

On getting the document to you, section 14G(3) gives two routes. You can sign a counterpart as soon as practicable after the session, or the signatory can scan the signed document and send it to you electronically for you to countersign. Post is technically possible but the Law Society does not encourage it, because the delay leaves the execution incomplete. Sign in the same session wherever you can. If the signatory dies or loses capacity in the gap between signing and countersigning, you have a problem that is very hard to fix.

If you use counterparts, keep every original. Courts want all counterparts filed for a probate application or an affidavit, and a missing one turns an administrative task into an argument.

Can you sign electronically when a document is witnessed remotely?

No for NSW wills, enduring powers of attorney, enduring guardianship appointments, affidavits and statutory declarations. Yes for deeds. Remote witnessing and electronic signing are separate questions, and section 14G only answers the first one.

The Law Society of NSW guidance puts it plainly:

"The position with electronic signing hasn't changed. If it was possible before the electronic witnessing provisions were introduced, it is still possible. If it wasn't possible before the provisions were introduced, it still isn't possible. This means that electronic signatures are not possible for wills, enduring powers of attorney, enduring guardian appointments, affidavits and statutory declarations (even though AVL witnessing is now possible for those documents)."

So you can watch someone sign their will over a video link, but they still need a pen and a piece of paper at their end, and so do you.

Two qualifications on that list. It states the NSW position, and statutory declarations made under Commonwealth law are different. Since 1 January 2024 a Commonwealth statutory declaration can be signed electronically, and it can be completed fully online through myGov Digital ID with no witness at all. The Law Society guidance quoted above was written in December 2021 and predates that change, so check which jurisdiction your declaration is made under before you insist on paper.

Deeds are the exception in NSW. Section 38A of the Conveyancing Act 1919 (NSW) says a deed may be created in electronic form and electronically signed and attested in accordance with this Part. Attested means witnessed, so a witness to a deed can sign electronically too. That makes a deed the one document on the section 14F list that, under NSW law, can run without paper from signing through to witnessing.

A contract for the sale of land is a separate case that often gets lumped in with deeds. It is not a deed, section 38A does not apply to it, and it needs no attesting witness in the first place. It can be signed electronically, but that comes from the general rule in section 9 below, not from section 38A.

For general transactions outside that list, section 9(1) of the Electronic Transactions Act 2000 (NSW) sets the test for whether an electronic signature counts:

"(a) a method is used to identify the person and to indicate the person's intention in respect of the information communicated, and (b) the method used was either— (i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or (ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence, and (c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a)."

In practice that means three things: the method has to show who signed and that they meant to, it has to be reliable enough for the job, and the person receiving it has to be willing to accept it that way.

How do you guard against fraud and capacity problems?

The main risks are that you are watching the wrong person, or the right person with someone standing off camera telling them what to do. A screen hides things a room does not, so the checks have to be deliberate.

For identity, when the client is not already known to you:

• Get photo ID before the call. Ask them to send a driver's licence, passport or Government Photo Card in advance so you can compare it with the face on screen.
• Have them hold the ID up to the camera. Check the details and the photograph match the person in front of you.
• Ask for a specimen signature on camera. Have them sign a blank sheet, hold it next to the signature on their ID, and check the two look the same.
• Keep proof. Take a screenshot of them holding the ID with their face visible, with their consent, and write a detailed file note of every step.

For capacity and free choice, which matters most with wills and enduring powers of attorney:

• Ask who else is in the room. Say it out loud and get an answer. Coercion by a family member standing behind the camera is the most common form this takes.
• Ask open questions about the document. Test whether they actually understand what they are signing, and record their answers in their own words.
• Tell them they can end the call at any time. Give explicit permission to hang up without giving a reason if they feel uncomfortable.
• Slow down. Spend more time taking instructions than you would in person, because you lose most of the body language.

You can record the session, and it is often worth doing, because a recording is strong evidence of identity, capacity and compliance with section 14G. But you must get consent from everyone present first, including the client, any other witnesses and any medical staff in the room. Recording without consent may be a criminal offence under the Surveillance Devices Act 2007 (NSW) and can end in a professional misconduct finding, so ask first every time rather than working out afterwards whether an exception covered you.

One more practical point about the link itself. If the connection drops while the person is signing, you have lost the continuous observation section 14F requires, and the safest response is to start the signing again. A court looking at a gap has no way of knowing what happened while the camera was off. The Law Society guidance cites Re Besanko [2020] VSC 170 on exactly this point, where pauses in a video recording left the court unable to say what passed between the parties while the camera was not running.

If you are dealing with documents that get witnessed in a family law context, it is worth reading about the formalities that can bring an agreement undone. For when a financial agreement can be unwound, see When Can a Financial Agreement Be Set Aside in Australia?. For the conduct side of the same question, see Can a Binding Financial Agreement Be Overturned in Australia?. If your document is a will rather than an agreement, see What Is a Testamentary Trust in Australia? Benefits & Uses.

FAQ

Do the witness and the signatory both need to be in NSW? No. Section 14I lets a document be witnessed remotely even when both people are outside New South Wales, as long as the document is made or required to be signed under a NSW Act, or NSW law governs it. The place of execution is treated as wherever the signatory was physically standing when they signed.

Can I witness by phone call if the video fails? No. Section 14F requires continuous and contemporaneous audio and visual communication, so audio alone does not satisfy section 14G. If the video will not work, reschedule rather than trying to make a phone call do the job.

What if I sign the counterpart a day later instead of straight away? Section 14G(3) allows you to sign as soon as practicable, so a short delay is not fatal, but it creates real exposure. If the signatory dies or loses capacity before you countersign, the execution may never be completed. Sign in the same session whenever you can.

Does remote witnessing work for a Federal Circuit and Family Court affidavit? Not automatically. The NSW Act expressly excludes laws of the Commonwealth, so section 14G does not reach federal documents on its own. Federal courts often pick up the law of the jurisdiction where the proceeding runs, but the arrangements vary, so check the relevant practice direction before you file.