On 9 April, Rohan Cochrane (Director, Family Law Specialists) and I delivered a webinar for the New Zealand Law Society on Remote witnessing and signing of documents during COVID-19 lock-down.
There were nearly 4,000 people on the webinar, which gives some indication of the extent to which lawyers are looking for new solutions at this time.
We didn't have a lot of time to prepare for the webinar, as it was put together on short notice. My thinking was still coming together during the webinar, as I saw questions coming through on the chat feed. It’s continuing to evolve, which is why I’m writing this post.
Our goal in the webinar was to look at some of the areas that appear to be causing the most issues, and to identify the most practical approaches we could.
We weren't suggesting that anything we said was sure to be legally effective, or accepted by every other party to a process (e.g. the recipient of an affidavit).
We also weren't suggesting that these were the only, or even the best way to manage things. I’m working on further ideas, and would certainly be keen for others that were on the webinar to build further on our suggestions, or to come up with better alternatives, and share those.
Having had a little more time to reflect on things, I’ve been able to summarise my thinking further. These views are my own, and not necessarily those of Rohan, the NZLS, or anyone else!
1 The law needs updating in some areas
A number of the laws that we are working with were written when current technology options were not available, or even thought of.
For example, oaths under the Oaths and Declarations Act 1957 (63 years old!) can only be given while holding a copy of the Christian bible. As well as not providing for people of other religions, it was interesting to see comments on the chat feed discussing what a bible was, and whether having the bible on a Kindle would count.
There are also issues, at least in the current lock-down situation, concerning those documents that are excluded under section 218(2) of the Contract and Commercial Law Act 2017 from the electronic signing provisions of that Act. These include (through Part 3 of Schedule 5):
- affidavits, statutory declarations, and other documents given on oath or affirmation
- powers of attorney and enduring powers of attorney
- wills, codicils, and other testamentary instruments.
There is no exclusion for deeds generally, however.
If these excluded documents need to be signed with a wet ink signature, then that means they are out of reach for all that don’t have access to a printer. With digital signing, anyone with access to a digital device with an internet connection can make them. This is an issue right now. In recent weeks, several people have contacted me wanting to put a will in place, but without having a printer.
There are additional issues in relation to witnessing, particularly in relation to wills. Section 11 of the Wills Act 2007 is clear that wills must be signed in the presence of two witnesses.
There was some comment on the webinar chat about whether “presence” could be physical, or online. However, when the UK Law Commission looked at this in 2019 (https://www.lawcom.gov.uk/project/electronic-execution-of-documents/), they concluded that wills and (in the UK) deeds needed to be witnessed in the presence of the signer. This was based on the wording of their relevant legislation similarly using the phrase “in the presence of”.
Even if there is an argument that presence could be physical or online, it's not a risk that many would be willing to take on something so important without clarification.
I would like to see the law clarified so that these documents could be both signed and witnessed digitally, using a solution that meets the requirements of sections 226 and 227 of the Contracts and Commercial Law Act 2017, i.e. one that:
- adequately identifies the signatory/witness and adequately indicates the signatory’s approval of the information to which the signature relates; and
- is as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.
Of course there will be concerns about issues of duress and fraud. I’m sure though that these could be worked through pragmatically, taking into account the suggested approaches set out in some of the resources mentioned in the webinar. These included:
- Ingrid Squire's article "To skype or not to skype: that is the question"
- the Interim Guidelines published by the Office of the Registrar-General of Land on 30 March 2020 - Authority and Identity Requirements and Electronic Signing of Documents
- Paul Collins' opinion on Administration of Oaths and Declarations in Circumstances of Mandatory Self-isolation.
The risks should also be kept in perspective.
- Traditional execution and witnessing is not risk-free either.
- There are also costs and difficulties with signing in person that may be contributing to many people not putting the documents in place at all. For example, over half of adult New Zealanders don't have a will, and the numbers for enduring powers of attorney would be even lower.
The current settings don't appear to be working as well as they could, and could be reviewed anyway.
2 Until the law is changed, we need to do the best that we can
If the law is changed in the short term due to COVID-19, we may get a chance to see how digital signing and remote witnessing could work as part of a longer-term solution.
But whatever course is chosen, for now we need to do the best that we can in the circumstances. As we tried to show on the webinar, there may be more flexibility than many think is the case.
Enduring Powers of Attorney
For example, while section 11 of the Wills Act 2007 is very clear (and restrictive) about the signing and witnessing of wills, the legislation that covers enduring powers of attorney doesn’t use the same wording. Section 94A of the Protection of Personal and Property Rights Act (apparently deliberately) doesn’t require witnessing in the presence of the donor in sub-section 4. It just says “The signature of the donor must be witnessed by a person who, subject to subsection (8), is independent of the attorney (or of each attorney)…”
The drafters clearly considered an "in the presence of" requirement, as they included one in section 94A(3): "The instrument must be signed (a) by the donor, or by some other person in the presence of the donor and by the direction of the donor”.
Arguably then, while an enduring power of attorney may not be able to be signed digitally, there is nothing to prevent remote witnessing. If the donor has access to a printer, they could still sign their enduring power of attorney with a wet ink signature, while a solicitor watches via a video call. The video call could be recorded as we demonstrated so the demeanor of the donor could be assessed, and they could confirm to the solicitor that they are alone and not under the influence of anyone.
The document could be couriered to the solicitor, who could then match the physical document against the video recording before completing the witnessing requirements.
The situation appears even better for deeds. Section 9(7) of the Property Law Act 2007 states that a witness must not be a party to the deed; must sign the deed; and if signing in New Zealand, must add the name of the city, town, or locality where he or she ordinarily resides; and his or her occupation or description. There is no reference to “presence”.
This is different from, for example, the Law of Property (Miscellaneous Provisions) Act 1989 (UK) which clearly requires physical presence:
(3) An instrument is validly executed as a deed by an individual if, and only if—
(a) it is signed—
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature.
As we showed on the webinar, digital signing systems can include witnessing functionality. When combined with a high-quality video call system that can record the process, many of the risks could be mitigated, if not avoided. We used Zoom for the webinar, and Microsoft Teams for the demonstration, and both have a lot of built-in functionality.
A high level of assurance can be gained about the probity of the transaction, that I think could be at least as good as a wet ink witness signature and witnessing, if not better.
It may also be instructive to look at experience in other areas that have been using remote witnessing. For example, we mentioned in the webinar that many lawyers have been witnessing section 21 and separation agreements remotely. I have not heard of material issues.
3 The parties relying on the documents could do more to understand, and work with, the limitations the law imposes, and not ask for more than can be reasonably done
Many of the documents that we were discussing have one or more key stakeholders (e.g. banks, insurers or government agencies) that need to accept and rely on the document. This means it is essential that the process and the resulting output, whatever it is, is accepted by that party.
In the lead-up to the webinar, I was told by lawyers that they were having trouble with banks:
- Insisting on getting original copies of documents, when that is currently not practical
- Agreeing to accept scanned copies of originals, as long as the solicitor undertakes to send the originals immediately after settlement. Again, this is not practical because the solicitor hasn’t got the originals either, and has no control over if or when the client will provide them
- Initially requiring original copies, then changing the position when pushed, so they now only need scanned copies, and they don't want the originals at all.
This lack of clarity and consistency is confusing, and it's causing a lot of unnecessary cost, delay and stress.
Of course, banks and other parties have legitimate reasons for wanting to protect their position. One such issue is that the Contracts and Commercial Law Act 2017 excludes all "powers of attorney" from the documents that can be signed electronically, not just enduring powers of attorney. Many standard bank documents contain a power of attorney provision as a “belts and braces” approach to protecting the bank’s position, and so the bank worries that digital signing might invalidate that provision, if not the document.
Fortunately the Government has recently announced that they plan to amend the Contract and Commercial Law Act 2017 so that the provisions in that Act relating to electronic signatures apply to security agreements containing powers of attorney.
Other things that I think would help include:
- Settling on a clear policy for what the organisation’s requirements are, and applying the policy consistently
- Communicating those requirements clearly and publicly, so that everyone knows what they are and can plan for them, rather than raising them individually
I understand that the banks are working hard to try and take the pressure off their customers – and themselves, and I believe they are adjusting their processes as rapidly as they can.
4 Some lawyers still have concerns that technology has more risks, is more complicated, and costs more than is actually the case:
This was clear from some of the comments on the webinar.
For the demonstration, we covered a more complex scenario than you would typically start with. We did this because we wanted to show what is realistically possible, and allow people to re-watch the webinar later to see the detailed steps again. We didn't want to scare anyone off!
There is always a challenge in learning something new. However, I guarantee that learning video call and digital signing software is more straightforward than many other things that you have learned to do. In less than the 90 minutes the webinar took, you will have mastered the basics. I asked my 10 year old daughter Ella to help with witnessing for the demonstration to show that it isn’t that hard (and because she's a star, of course!}.
I'd like to reiterate a comment I made on the webinar – the decisions to use technology is a horses for courses choice. I'm not suggesting that digital processes replace traditional ones in every case. What I am suggesting, though, is that digital processes could offer an alternative way to put certain documents in place when the parties are willing and able to follow those processes.
My advice would be to set yourself up with Microsoft Office 365 and Secured Signing plans. Both are low cost. You can then play around using some pretend documents, until you are comfortable enough to start using it on real transactions. Before starting on contracts between parties, see if you can use it for making internal approval processes digital and paperless.
5 If it still looks too hard, there are services that can help
In preparing for the webinar, my research led me to a couple of websites that I think could help those of you that just aren't ready to do digital witnessing or certification yourself.
If you are looking for options, check out:
Each has different approaches to how they offer their services, and you will need to form your own view about which approach best suits your needs and comfort levels.
If you need help with Office 365, and how the various components of that solution can all fit together, speak to Hayden Sinclair. Hayden runs The SharePoint Agency, helping people get SharePoint right. He has helped me to get up to speed on Office 365, and we have worked together to jointly build a SharePoint solution for a client that incorporates automated documents via online forms in SharePoint and digital signing. Hayden and I also recently did another webinar for the College of Law’s Centre for Legal Innovation on Office 365 for Lawyers, which you can see for some further ideas as to how digital processes could come together.
And if you would like help with how digital signing can be integrated with your document creation processes, using the Secured Signing Smart Tag functionality that I demonstrated in the webinar, I'm happy to help you. By combining digital signing with document automation, you can pre-tag the documents for signing by answering a couple of additional questions in the questionnaire for preparing the document. Every party to the document (and any witnesses) automatically has an execution block created for them, with a formatted smart tag created for you. A straightforward example of this was the engagement letter I showed on the webinar, which you can read more about here.
As I mentioned above, my thinking continues to evolve each time I speak to someone about this. Let me know if you'd like to discuss anything I covered off on the webinar or in this follow up blog. Are there any alternatives you think should be considered? What remaining concerns do you have that need to be addressed?