Witness Signature Rules in Australia

Witness Signature Rules in Australia

Witness Signature Rules in Australia

Witnessing a person signing a legal document, such as a commonwealth statutory declaration, helps to ensure that the document is valid and guarantees its legitimacy. There are specific rules and regulations regarding who can be a witness, and the requirements vary depending on what type of document.

Find out more about the rules regarding witness signatures in Australia, what documents require a signature, who can be an authorised witness, and the legal requirements.

Let’s take a closer look.

Why is a Witness Needed When Signing a Legal Document?

There are several reasons why a witness must be present when signing important documents; essentially, having a witnessed signature can ensure that the legal document is valid and enforceable.

When a witness sights the person’s signature, it ensures that the document is signed validly, which can prove that no illegal activity was used to obtain the signature, such as coercion.

Also, having a witness present will ensure that the right person signs the document and that no fraud has occurred, such as someone signing the document on another person’s behalf.

Some documents are required by law to be witnessed to ensure that they can be legally binding.

What Documents Need a Witness Signature?

Certain documents in Australia require that someone witnesses an individual’s signature whilst signing. Many documents require a signature to ensure that it is legally binding. The following documents will generally require someone to witness a signature;

  • General Contracts
  • Agreements
  • Guarantees
  • Mortgage documents
  • Financial agreements
  • Deeds
  • Wills

Even if there is no legal requirement to obtain witness signatures for specific documents, getting one wherever possible is still a good security measure.

What is an Authorised Witness?

The law states that certain documents, such as affidavits and statutory declarations, require an authorised witness to be present when you sign. Depending on the document type, there are different types of witnesses, and each state and territory has their legislation.

An authorised witness will generally be one of the following;

  • Justice of the Peace
  • Notary Public
  • Judge
  • Magistrate
  • Legal Practitioner
  • Police Officer
  • Registered Marriage Celebrant
  • Senior Court Officer
  • An authorised person who can administer an oath
  • A person who is licensed or registered in certain occupations in Australia, such as a financial advisor, medical practitioner, or pharmacist

What is a Statutory Declaration?

A commonwealth statutory declaration is a written statement that outlines the facts of a matter; it is a legal document often used to clarify a matter of truth. It is a criminal offence in Australia if your statutory declaration contains false information.

A statutory declaration is only valid if an approved witness has signed it.

Who Can Witness a Signature?

Several people can witness a document, which will vary depending on the document type being signed. Certain documents must have an authorised person with specific qualifications to be the witness.

But generally speaking, a witness must be;

  • Over 18 years old
  • Know and confirm the identity of the signing party
  • Be of sound mind and mental capacity
  • Not be under the influence of drugs or alcohol
  • Not have any financial interest, or be a party to the document
  • If the document is a trust or superannuation fund, they must not be a beneficiary

Can a Family Member Witness a Signature?

Family members can witness a signature on a document if they do not benefit from the agreement or are a party to it in any way. But, as a general rule, wherever possible, an alternative witness is preferred, as it may later raise questions in court regarding the enforceability.

Can You Witness a Signature Remotely?

During COVID-19, when people were required to isolate, there became a need to witness documents remotely. Electronic witnessing was introduced, which enables a person to see and hear the process of signing a document via an audio visual link. The witness can still see the other party signing the legal document, and the document can be shared online. Witnessing documents remotely is now considered a legally sound practice whilst the temporary COVID laws are still in place.

Despite this new legislation, the usual practice for signing legal documents, such as wills and contracts, is still a handwritten signature.

Can E Signatures Be Witnessed?

An e-signature is a convenient and efficient way to sign a document; it saves time and can be beneficial for all parties, as it can also be more secure than a paper document, as it can make tampering more difficult.

For an electronic signature to be legally valid, it must be done correctly and accurately.

The correct procedure is located in the Electronic Transactions Act, and parties should refer to the relevant legislation in their state or territory for further information.

What Are The Steps To Correctly Witness A Signature?

The following requirements must be met when witnessing a signature to ensure that the documents maintain their legitimacy;

  1. Ensure the document is signed in front of you; it is not acceptable to have a document pre-signed.
  2. Whenever possible, the witness must be physically present.
  3. Only use black or blue ink, which can be seen more clearly when copied or scanned.
  4. Check all document pages to ensure all required pages have been signed.
  5. Initial any changes that have been made after signing.
  6. State that you have known the person for at least a year and may need to verify their identity if you are in New South Wales.
  7. Check what additional details are required, such as the date, occupation, etc.

Summary

There are several reasons why a witness must be present when signing an important legal document; essentially, having your signature witnessed can ensure that the document is valid and enforceable. Some documents are required by law to be witnessed to ensure that they can be legally binding, and the law states that documents, such as an affidavit or a statutory declaration, require an authorised witness to be present when you sign, such as a Justice of the peace, notary public or legal practitioner.

Several people can witness a document, and they must be at least 18 years old, be of sound mind and mental capacity and know the person signing.

Family members can witness a signature on a legal document if they do not benefit from the agreement or are a party to it in any way. But, wherever possible, an alternative witness signature is preferred.

During COVID-19, when people were required to isolate, there became a need to witness documents remotely. Electronic witnessing was introduced, which enables a person to see and hear the process of signing a document via an audio visual link.

Depending on the document type, there are different types of witnesses, and each state and territory has their own legislation, each with different requirements.

FAQS

What are the Rules for Witnessing A Signature?

The following requirements must be met when witnessing a signature to ensure that the document maintains its legitimacy;

To witness a signature, you must;

  • Know the person for at least a year
  • Be mentally capable
  • Not be under the influence of drugs
  • Not be a party to the agreement or have a financial interest
  • Be over 18 years old

Who can Witness a Signature in Australia?

Several people can witness a signature in Australia, it will vary depending on the document type being signed.

A family member can witness a signature on a legal document if they do not benefit from the agreement or are a party to it in any way.

The law states that certain legal documents, such as affidavits and statutory declarations, require authorised witnesses to be present when signing, such as a notary public or magistrate.

What does Signing a Document Mean?

Some documents are required by law to be witnessed to ensure they can be legally binding.

When a witness sights the person signing, it ensures that the document is signed validly, which can prove that no illegal activity was used to obtain the signature, such as coercion.

Also, having a witness present will ensure that the right person signs the document and that no fraud has occurred, such as someone signing the document on another person’s behalf. A witness can ensure that all legal obligations have been met when signing the document.

Related articles
Dealing With A Drink Driving Charge In NSW
Dealing With A Drink Driving Charge In NSW

In NSW, a drink driving charge is a serious offense that can have severe consequences. The article provides guidance on Read more

Contributory Negligence
Contributory Negligence

Contributory negligence is a legal principle where a person's own actions or lack of actions contribute to their injuries or Read more

The Legal Right To Silence In NSW
The Legal Right To Silence In NSW

Find out more about your legal rights when remaining silent in a criminal proceeding and the impact the new laws Read more

What is Litigation?
What is Litigation?

The term litigation refers to the process undertaken of handling disputes and bringing to court lawsuits that enforce a particular Read more