Written by
Ilyas Omari
Reviewed by
Have you ever had to sign a legal document that states it must be signed in the presence of a witness? You might be wondering what this means and who can witness a signature?
It’s crucial for you to understand the laws and regulations surrounding who can be a witness. This is because using an improper witness can diminish the legitimacy of the legal document. In this article, we’ll explain who can witness a signature, why witnesses are needed, the types of documents that require a witness and answers to other frequently asked questions.
Read along!
Why is a witness needed when a legal document is being signed?
There are many reasons why a witness is required when a legal document is being signed. The primary purpose is that it helps to ensure the person signing the document is who they claim to be.
This is to avoid fraudulent documents in which one person signs a document on another person’s behalf. It also prevents the person signing from later dishonestly claiming that they had never signed the document. The secondary purpose is to ensure that the person signing the document has capacity to sign the document.
If you want further information regarding documents being signed on behalf of individuals, read our article ‘Is It Legal to Sign on Someone Else’s Behalf?‘.
Furthermore, witnesses are also beneficial when two different documents are submitted. This is because if the witness has kept a copy of the document, they’ll be able to verify the original and legitimate document. The presence of witnesses is also crucial to prevent illegal actions from affecting the legitimacy of the signing, for example, duress.
Get a free legal document when you sign up to Lawpath
Sign up for one of our legal plans or get started for free today.
Who Can Witness a Signature?
There are many people who can be witnesses. Generally, who can be a witness of a signature can vary depending on the type of document that is being signed, the location the document is being signed, and the relevant legislative requirements.
However, in general, a witness must have the following characteristics:
- Witnesses must be at least 18 years old
- Witnesses must be of sound mind and have the capacity to witness
- Witnesses must not be a beneficiary or party of the legal document
- Witnesses must not be under the influence of drugs or alcohol
- In some instances, witnesses must know the individual they’re acting as witnesses for, for a certain period of time. If they haven’t known the individual for this time period, the witness is required to verify the identity of the individual
However, some legal documents have different requirements. For instance, a witness for an affidavit or statutory declaration must generally be a:
- Justice of the Peace (JP)
- Notary public
- Commissioner of the court for taking affidavits
- A legal practitioner
- A person having authority to administer an oath
Different states have different requirements for these matters.
Which documents will a witness need to see to verify your identity?
You should be aware that if a witness has known you for less than one year, they may need to verify your identity.
There are two ways that witnesses can verify your identity. These include the following:
- You can provide the witnesses with a photographic identification document. These documents can include a passport, driver’s license or a proof of age card issued in accordance with the Photo Card Act 2005.
- Alternatively, you can provide a witness with a primary non-photographic document. These can include birth certificates, pension cards or citizenship certificates. Alternatively, you can produce your witness with a secondary identification document such as a notice from Centrelink or the Australian Taxation Office( ATO)
Can a family member (relative) witness a signature?
For many documents, such as powers of attorney, no. For others, it isn’t always the best idea because, ideally, a witness should be a neutral third party.
Furthermore, as previously stated, witnesses can’t be a beneficiary or party to the document. Relatives are more likely to be a beneficiary or party to a document than neutral third parties.
When relative witnesses a document being signed, the document’s legitimacy is diminished. Therefore, it’s best to appoint a witness with no interest in the document. This also means that the witness should not have a significant interest in your affairs. Avoiding having a relative as a witness is particularly important in wills as it’s highly likely that the relative will be a beneficiary.
Can a spouse witness a document?
The same guidance applies for spouses as for other family members.
Types of Documents Requiring a Witness
The following documents generally require a witness when they are being signed:
- Affidavits
- Guarantees
- Statutory declarations
- Wills
- Deeds
- Financial loan/agreement
- Mortgage document
- General contracts
Can E-signatures be witnessed?
Electronic signatures can be witnessed in some state jurisdictions but not others.
However, the signature needs to be witnessed following the guidelines that are outlined in legislation such the Electronic Transactions Act 2000(NSW). The following requirements must be met when an e-signature is being witnessed:
- When the individual is signing the document, the witness has to properly observe the individual signing it
- An audio-visual link is required for the signing
- After the document has been signed, there needs to be a statement provided that confirms that the document has been signed and that the relevant legal requirements have been met
These requirements are subject to change.
For a quick and easy way to sign your document, check out our free eSignature tool.
Conclusion
To summarise, witnesses are required when a large number of legal documents are being signed. It’s crucial to have documents correctly witnessed, as this will help you avoid legal consequences and disputes down the track. Furthermore, it’s crucial for witnesses to properly witness the signing of documents properly to avoid potential fines.
If you’re still unsure about who can witness a signature, you should hire a lawyer to ensure you select the correct witness. Similarly, as a witness, you could also hire a lawyer to ensure you’re aware of your legal obligations as a witness.
Get a fixed-fee quote from Australia's largest lawyer marketplace.
