3 May 2023Electronic signing of documents grew enormously during the Covid lockdowns, but now questions have been raised about how an electronic signature, created with the press of a button, is properly witnessed under law.
What is an electronic signature?
Software such as DocuSign can be used to add a signature to a document electronically by pressing a key on a keyboard.
Alternatively, you can sign a document with a pen, scan the signed document and send it via email.
Signing with an electronic signature was temporarily made easier under law during the pandemic. That change became permanent in late 2021.
Signatures to legal documents such as wills must be witnessed by two adults. But with self-isolation, social distancing and travel restrictions during lockdowns, it was often impossible for people to be close together physically to witness the signing.
Is an electronic signature legal?
The law requires the witnesses to see the person signing their name on documents such as wills, enduring powers of attorney, affidavits, statutory declarations and deeds.
Electronic witnessing has made it easier and more convenient to witness signatures. But there are challenges with this sort of physical distance, including identity verification, the need to confirm mental capacity and the possibility of undue influence or coercion.
A Supreme Court case in Victoria recently raised the question of whether a witness can clearly see the testator’s signature being made electronically, and whether the testator can clearly see the electronic signature of each witness. (Please see Re Curtis [2022] VSC 621.)
This question arose in an application for a grant of probate of an electronically signed will. The will was signed via DocuSign during an audio-visual meeting with two witnesses, who signed electronically.
What makes an electronic signature legally binding?
The court examined whether the witnesses needed to see the signature button being pressed on the keyboard.
Do witnesses also need to see the computer screen which shows the document the signatory is electronically signing?
Is it adequate to hold the document up to the screen camera and then put it on the desk to sign?
The court concluded that the witnesses need to do more than just connect via audio-visual link. They must have an unobstructed view of the testator as they sign, and clearly see the document that is being signed.
The court said it would be wise, now that lockdowns are over, to re-execute relevant wills, either in the traditional manner of witnessing in person, or by proper compliance with remote signing procedures.
These events took place under Victorian law, but the requirements are similar in NSW.
An electronic signature needs to be seen clearly by witnesses when signing, just as in face-to-face situations. (Please see Implications of the electronic witnessing provisions, Law Society of NSW, December 2021.)
