Electronic signing and online witnessing of legal documents

Many legal documents need to be signed and/or witnessed. In the past, this often meant that handwritten signatures were needed, and witnesses had to be present in person.  

Changes to Victorian law mean that for most legal documents, there are now more options:

• electronic signatures can be used
• signatories (people signing a document) and witnesses can sign in each other’s presence via an audio visual link

This can make it more convenient. You can use online video-conferencing platforms such as Skype or Zoom. 

Of course, you can still sign and witness documents using existing methods. It does not have to be done online.

Changes to the legislation

The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (External link) made changes to several pieces of legislation that cover how legal documents must be signed and witnessed in Victoria.

See the table below for the affected Acts and types of documents they cover:

Act	Type of document
Electronic Transactions (Victoria) Act 2000 (External link)	Documents that are defined as a ‘transaction’ within the Act, including: contracts or other types of agreements or arrangements statement, declaration, demand, notice or request that parties must make in relation to forming or performing a contract, agreement, or other arrangement non-commercial transactions deeds*
Oaths and Affirmations Act 2018 (External link)	affidavits statutory declarations
Wills Act 1997 (External link)	wills codicils other testamentary instruments
Powers of Attorney Act 2014 (External link)	powers of attorney and related documents

*Changes to the Electronic Transactions (Victoria) Act 2000 mean that deeds can now be considered as transactions. They can be in electronic form and ‘signed, sealed and delivered’ by electronic communication, under Victorian law.

Electronic signatures

There is no one way to electronically sign a document. For example, you can:

• paste a copy of a signature into a document
• sign a PDF on a tablet, smartphone or laptop using a stylus or finger
• physically sign a hardcopy document and scan the document
• confirm your agreement by electronically selecting an option indicating agreement.

The party who is to receive the document must agree to the use of an electronic signature for it to be valid. They may choose not to consent for a number of reasons, such as being concerned about the integrity of a document. However, just being reluctant to use an electronic signature is not a sufficient reason.

Physical location of participants

For most legal documents, signatories and witnesses may be physically located outside of Victoria.

However, all participants must be located in Victoria during the witnessing process for:

• powers of attorney documents
• wills, codicils and other testamentary instruments.

During the online witnessing process, one or more witnesses can be present physically, while others are present via audio visual link.

Existing responsibilities for witnesses are not changed by online witnessing

Witnesses have existing duties under the law when they witness a legal document. They must ensure their existing obligations are compatible with witnessing by audio visual link.

For example, a witness must:

• confirm the identity of the signatory
• determine that the signatory has capacity to understand the document they are signing
• establish that the signatory is signing freely and voluntarily
• be satisfied the transaction is not affected by an ‘apparent defect’. This can include behaviour such as undue influence, duress or unconscionable conduct.

If a witness is not able to satisfy themselves of these matters by audio visual link, they should not execute the document online.

Special witnesses

When some legal documents are witnessed by audio visual link, one witness must act as a ‘special witness’.

A special witness must be:

• an Australian legal practitioner, or
• a justice of the peace.

A special witness is required for:

• some powers of attorney documents
• wills and other testamentary instruments.

You can learn about the requirements of special witnesses on the following pages:

• powers of attorney documents
• wills, codicils and other testamentary instruments.

How to witness legal documents online by audio-visual link

The Electronic Transactions (Victoria) Act 2000 provides requirements for witnessing documents by audio visual link:

• all parties involved must be connected through an audio visual link
• if the document requires the witnessing of a signature, the witness must see this take place through an audio visual link
• the witness must be satisfied that the document they sign is the same document or a copy of the same document signed by the signatory (the person who signed the document)
• all aspects of the witnessing by audio visual link must take place on the same day
• any other prescribed requirements that apply to the particular document being signed must also be met
• the witness must include a statement on the document that all the requirements of witnessing by audio visual link have been met.  

 An example of this statement is:

The requirements for witnessing by audio-visual link under section 12 of the Electronic Transactions (Victoria) Act 2000 have been met.

Witnesses do not need to be physically located in Victoria to witness a document via audio visual link under the Electronic Transactions (Victoria) Act 2000, unless they are required to be in Victoria by another applicable Victorian law.

Some legal documents have special requirements

While the process is similar, some legal documents covered by other Acts have special requirements for online witnessing.

You can find detailed information for:

• affidavits
• statutory declarations
• powers of attorney documents
• wills, codicils and other testamentary instruments.

Mortgages and other instruments to be lodged with the Registrar of Titles at Land Use Victoria

Most mortgages, as well as a range of other documents relating to land use and ownership, must be lodged with Land Use Victoria. These documents are sometimes known as ‘instruments’.

Changes to the Electronic Transactions (Victoria) Act 2000 confirm that mortgages can be in electronic form. However, this Act also exempts any instrument that must be lodged with Land Use Victoria from the electronic signing and witnessing measures.

This means that any document that needs to be lodged with the Registrar of Titles at Land Use Victoria must still:

• meet the Registrar’s requirements for electronic lodgement, or
• be provided in the approved form for paper lodgement.

For more information on lodging documents at Land Use Victoria (External link) please visit their website.

Types of documents that cannot be electronically signed and/or witnessed online

The following types of legal documents have been exempted from the new measures in the Electronic Transactions (Victoria) Act 2000.

They are listed in the Electronic Transactions (Victoria) Regulations 2020 (External link).

Advance care directives

An advance care directive:

• can be signed electronically
• cannot be witnessed over audio visual link.

You can learn more about advance care directives by visiting:

• Office of the Public Advocate’s information on Making an advance care directive (External link)
• Medical Treatment Planning and Decisions Act 2016 (External link).

Arrangements in relation to voluntary assisted dying

Any arrangement in relation to voluntary assisted dying:

• cannot be signed electronically
• cannot be witnessed over audio visual link

You can learn more about arrangements in relation to voluntary assisted dying by visiting:

• Department of Health's Voluntary Assisted Dying page (External link)
• Voluntary Assisted Dying Act 2017 (External link).