Can a relative be an ‘illegal’ witness?

Have you ever had to sign legal documents that require the presence of a witness? Choosing an appropriate witness is important to ensure a document is valid and binding in a court of law, but it can be tricky to know who can and cannot witness a signature. The short answer is that it depends on the jurisdiction in Australia, the relevant legislation and the type of legal document that must be authorised and signed.

In some cases, witnesses will need to be a justice of the peace, a notary, lawyer or a police officer. Read through this Business Kitz article for advice on the requirements and best practice for witnesses of a signature to assist you in finding the perfect match.

Why is a witness necessary?

You may be wondering why a person needs to witness your signature in the first place? The main reason is to ensure that the person signing the document is who they claim to be and that the signature has been approved as authentic. This is to avoid a fraudulent legal document and the complications that come with signing on another person’s behalf. Some documents are required under Australian law to be witnessed by a Justice of the Peace (JPs) or a Commissioner for Declarations to ensure the honesty of the person signing the deed.

In some cases, this is upheld by a sworn oath that all information provided is correct and true, administered prior to the signing of the document. A document that has been witnessed by a JP or Commissioner for Declarations is considered to have higher legal standing and thus, should you be asked to provide evidence about a document in court for example, these qualified witnesses will have a record of any additional information you have supplied. This is trusted over the word of someone who is related to you.

What kind of legal documents require a witness?

Many legal documents and statements need a witness; namely wills, statutory declarations, enduring powers of attorney, affidavits, mortgage, property and bank loan documents. Therefore, it is necessary to make sure you are aware of the requirements under the statutory declarations applicable to your specific circumstances to ensure your signature is approved.

Who can witness my signature?

Think of someone witnessing your signature as a green tick for a document to become legally binding, valid and enforceable. Usually, a witness will be someone who is not a beneficiary or party to the lodged document, has the mental capacity to sign, is not under the influence of drugs or alcohol and is at least 18 years of age. Therefore, electing an independent third party as a witness to the document that must be signed is generally best practice, as there is very little chance that they will be restricted from providing evidence.

While there is no exact law in Australia stating that a witness must not be a family member, it is not advised to appoint a family member or spouse whose personal involvement with the party to the document may impact its validity in court. It is always wise to think about whether the person is related or has an interest in you in any way that may present a legal threat.

When is a qualified witness required?

Generally, the law requires a particular document in a legal proceeding to be witnessed by a specific person who has specific credentials (authorised witnesses). A qualified witnessing officer must be present to sign statutory declarations, enduring powers of attorney and affidavits. The legal practitioner, or witness, must sign a certification clause to verify that the document is an identical copy and authorise the signatory with their registration number or full name. Qualified witnesses that can approve and execute these documents in a court of law in Australia are:

  • a Justice of the Peace;
  • a notary public;
  • an Australian lawyer or solicitor;
  • a licensed conveyancer or legal practitioner from a different state;
  • a commissioner of the court (for affidavits); or
  • other authorised professions such as doctors, police officers, or pharmacists.

‘Connection to Australia’

Under Australian law, a person providing their services for the witnessing of a statutory declaration must either be a notary public or on the list of approved witnesses and ‘have a connection to Australia’. What exactly does this mean beyond enjoying a BBQ? Having a connection to Australia means the person must:

  • have been appointed in Australia;
  • have a licence to practice in Australia; and
  • hold a membership at a professional organisation in Australia.

So, for example, a doctor registered to practice medicine in another country cannot be a witnessing officer to verify your statutory declaration, but a doctor that is registered in Australia can. A relative is also not authorised to be a witness of a statutory declaration.

Impact of COVID 19: virtual witnesses

The pandemic has impacted many aspects of our lives, including the signing of a will, statutory declaration, agreement or another legal or financial document. In the era of COVID-19, there are alternative witnessing provisions put in place to assist in the witnessing of a signature if parties are required to self-isolate or self-quarantine, particularly if the submission of the legal form cannot be delayed under any circumstances.

If you find yourself or another person needing to sign a document in the presence of an authorised witness but cannot leave the home, there are still options for electronic signatures and witnessing through an audio visual link. A word of advice; make sure you are aware of the date when providing your signature as these temporary changes made to the Australian law are in place until the 31st of December 2022.

Legal advice

As convenient as it may seem to elect a family member to witness a signature, the process and statutory legislation surrounding witnesses are not as straightforward as expected, as outlined in this article. As a basic summary, it is generally safest to avoid choosing a person who is related to the person signing the agreement, who may also be a beneficiary, and instead seek a neutral third party to the document, such as a lawyer.

If you are considering finding a witness to sign a document, we recommend seeking legal advice. Our sister company, Legal Kitz, provides high quality services to assist with your legal documentation and can answer any other questions you may have. You can book a free 30-minute consultation with their experienced and highly qualified team via their website now.

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