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Witnesses, while not party to the document being signed, are one of the most important people when it comes to guaranteeing the legitimacy of a legally binding document.
A witness is there to make sure the parties identified have been confirmed and that the document is being validly signed. Further, it’s a way of ensuring there is no illegal action that would affect the validity of the contract, such as duress.
As a result, witnesses play an important role in the signing of a document. However, who can be a witness will most likely vary depending on the location and type of document in question.
It’s good to be aware of the differences so you can be prepared for the eligibility of a witness next time you’re faced with a legal document. We’ll take a look at this in more detail in the article.
When Do Documents Need A Signature?
A document will usually require a signature when it’s a prerequisite according to the law to make the document legally binding. Certain official applications, deeds, wills, mortgage papers, guarantees and contracts will sometimes need a witness’ signature.
Even if a witness isn’t a legal requirement for certain documents, you can still opt to have one as an added security measure.
Who Can Be A Witness To A Signature?
Who can witness a signature will depend on the document itself. At times, documents will simply need an ordinary witness. This is a person who doesn’t need any special requirements to witness the signature, as long as they are over the age of 18, are considered to have the capacity to witness the signature and can confirm the identity of the signing party.
Other documents, however, may need to be witnessed by people with specific qualifications. These can be affidavits, wills or deeds that require a justice of peace to sign it or a family member.
We’ll look at this in more detail below.
Can A Family Member Witness A Signature?
Family members can often witness signatures and may even be required in some instances. For example, a family member can be a witness to an affidavit.
As long as the family member is not to benefit from the document being signed, and meets the general requirements of age and capacity, they are likely to be a valid witness.
Can A Spouse Witness A Signature?
Yes, a spouse can witness a signature. Once again, as long as the spouse isn’t a party to the contract or doesn’t stand to gain something from the legal document that is being signed, they are most likely eligible to act as a witness.
Can A Bank Witness A Signature?
Financial documents such as mortgages or land transfers are often done with banks. The witness is often an individual and therefore, it’s highly unlikely that a baking institution will agree to act as a witness.
However, many legal documents from the bank will need a witness signature.
Can A Director Witness Another Director’s Signature?
When signing company documents, the rules are a little different. If a company seal is being used, then it will either need two directors or a director and a secretary.
Otherwise, a director (and usually an independent witness) is recommended to avoid potential conflicts or criticism on the validity of the document down the line.
The rules around what directors can and can’t do are generally outlined in the Corporations Act 2001. Otherwise, it should also be set out in your Company Constitution.
What Is A Statutory Declaration?
A statutory declaration is a written statement of fact. Often, a statutory declaration will be used to clarify a matter of truth. It’s a clear, simple statement that outlines the facts and intentions relating to the matter at hand.
The recommended format for a Commonwealth statutory declaration can be accessed here.
Who Can Witness A Statutory Declaration?
A statutory declaration must be witnessed by an authorised person. This requirement can vary depending on the state you live in, so it’s crucial to check your local regulations when getting statutory declarations signed by a witness.
In NSW, an authorised person to sign a statutory declaration can be:
- A justice of peace
- Practising solicitor
- Notary public
- Court commissioner taking affidavits
- Individuals who are otherwise legally able to administer oaths
Can You Witness A Signature Remotely?
Yes, since the start of COVID-19, there was a need for the witnessing of documents to become easier, as individuals could not travel to be in the same room as a signee. Since then, witnessing a document remotely through virtual mediums has become a legally sound practice.
How Does Electronic Witnessing Work?
Electronic witnessing works when the witness is able to see and even hear the process of signing the document through an audio visual link. This means that they will still need to be able to clearly see the signers and the act of them signing the document.
After that, the document can be shared online or more traditionally, faxed or mailed (this is a bit slower though) to the witness who can then sign their part of the document.
Can You Witness An Electronic Signature?
Yes, an electronic signature can still be witnessed. However, it must be done accurately and in accordance with the regulations in order for the witnessing of the electronic signature to be legally valid.
More specifically, it should abide by the rules set out in the Electronic Transactions Act 2000 (NSW).
We recommend talking to a legal professional to gain some clarity on the best way to go about this process.
How Do Online Contracts Work?
Like witness signatures, contracts can also be signed online. An online contract is simply a normal legally binding document that can be signed by the parties virtually.
Lots of businesses opt for online contracts as there are various options for keeping all your contracts in one secure place.
Is An Online Contract Legally Binding?
Yes, an online contract is legally binding, provided it still meets all the elements of a contract. This means the contract must have:
- Offer and acceptance
- Consideration
- Capacity
- Intention of the parties to be legally bound
- Legality
Who Can Sign An Online Contract?
Like all other contracts, the parties to the online agreement are eligible to sign it as well as any witnesses that have agreed to do so. The requirements to sign an online contract are the same as signing a contract in person. This includes:
- The parties must be entering the contract freely and willingly
- All signers must have the capacity to enter into the contract
- The contract must be designed in accordance with other laws and regulations (for example, the Corporations Act 2001 for companies)
Legal Age To Sign A Contract
Finally, the legal age to sign a contract must be adhered to. A legal adult, who is a person of 18 years of age or more, can sign a contract on their own.
Minors can still sign a contract, however, contracts cannot be enforced onto minors. So, it won’t have the same legal standing as signing a contract with an adult.
There are some exceptions where a contract with a minor will be declared valid, such as if the contract is for the minor’s necessity and benefit.
Can I Use E-Signatures?
Yes, e-signatures are more convenient and efficient as it takes away the need for the signees of a document to travel to one another. In many contexts, this efficiency can be beneficial for all parties.
It can also be a lot more secure than a paper document as it is harder to tamper with after the signing (some people may choose to initial a document for clarity and security).
At Sprintlaw, we offer all our members an exclusive e-signature tool with unlimited access. This way, you can keep all of your business’ documents in one, secure place. It can also cut costs and save you time – contact us today for more information about our membership.
Key Takeaways
Witnessing a signature is an important job, as long as some key things are kept in mind along the way.
To summarise what we have discussed:
- A witness is there to help confirm the legality of the document being signed
- A witness can usually be anyone, however, certain documents will need an authorised person to witness it
- A statutory declaration is one such example as it needs to be witnessed by someone like a justice of peace
- Contracts and witness signatures can be done online, provided it follows the relevant regulations
- The same requirements for a contract and a witness apply for virtual signings
If you would like a consultation on witnessing a signature, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
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