by It’s all a little confusing! If you do not have access to a printer, can documents be signed electronically (on a screen, rather than on paper)? If they need to be witnessed, and you are in lockdown, who does it, and how? What if you are in lockdown outside New Zealand?
Statutory declarations cannot be signed electronically, but may be witnessed by audio or video link while being signed on paper.
A&I forms can be signed electronically and must be witnessed in person or by video or audio link. A&I forms require certification of identity, which may require verification software if it has not previously been done in person.
If signed outside New Zealand, any of these documents can be witnessed by a solicitor in New Zealand, or a Commonwealth representative or notary public or judge.
In a Commonwealth country, they can also be witnessed by a Justice of the Peace (JP), or any person authorised by the law of that country to administer an oath there for the purpose of a judicial proceeding,
However, if video witnessing is being used for the A&I form, this must be done by the law firm handling the transaction, rather than being delegated to someone else.
Statutory declaration – for transmissions by survivorship or transmission to executors/administrators
These statutory declarations will require a certified copy of the death certificate (for survivorship) or of probate or letters of administration (for executors or administrators). They may also have other exhibits.
Certified copies cannot be certified by videolink – it is impossible to examine the original document to be sure it has not been altered. If you do not already have a certified copy that you can attach, you can attach the original (but you will not get it back).
You may prefer to use a copy that is not certified, and cross out the word ‘certified’ from the declaration. Then courier the original document to us when you send us the hard-copy statutory declaration. We will make a certified copy at that stage and return the original document to you.
A statutory declaration cannot be signed electronically. It’s one of the documents excluded from the electronic-signing provisions of the Contracts and Commercial Law Act 2017. So you need a hard copy.
If you cannot print it from the email we send you, let us know and we can courier it to you. (This year, unlike last year, we are able to use couriers in Level 4 even though legal services are not considered ‘essential services’. However, deliveries may be delayed, with preference given to essential services.) Or you may copy it out by hand.
The declaration must be taken (and witnessed) by a JP or lawyer, or notary public, or a person who is enrolled as a barrister and solicitor even if they do not hold a practising certificate, or an MP, or anyone else specifically appointed to do so. (Or a court registrar if you happen to know one who will do it while they are off duty. Do not ask them to do it when on duty – they have enough other issues to deal with during lockdown.) That can be done by video or audio link. (Audio could be used if the witness is able to see you but not hear you – for instance, through a closed car window or the window of a building – if the witness comes to your home but stays outside.)
After you sign the statutory declaration, you email the witness a scan or photo of the signed document, or somehow get the original signed document to them (using contactless pickup/delivery). They then sign it.
If you are outside New Zealand, this can be done by someone who is authorised to administer an oath in the country where you are, or by someone who holds a current practising certificate as a New Zealand lawyer. Therefore you can do it with us by video link. (This is different from an affidavit – a statement of evidence for use in court, including an application for probate or letters of administration. Even under the emergency COVID regulations, a New Zealand lawyer may not witness an overseas affidavit that is to be used in a New Zealand court.)
Authority and Instruction Form (‘A&I Form’) – for all land transactions
The Authority and Instruction Form (‘A&I Form’) instructs and authorises us to complete the transaction on your behalf, using Land Information New Zealand’s online edealing system.
The A&I Form may be signed electronically – on a screen, without needing paper. So, if you cannot print it, it can be signed and witnessed using appropriate digital-signing software such DocuSign. Whether signing on paper or electronically, you must sign it yourself – it cannot be signed on your behalf by someone else.
The A&I Form requires certification of your identity by checking your photo ID (usually passport or driver licence). The witness needs to check your own likeness when you sign the A&I form, and also check a scanned copy against the original ID.
If the witness is physically present when you sign the A&I form, they can easily check your photo ID against your face. They also need to check a scanned copy, or take a photo of your ID themselves. They can sign the hard copy if there is one, or sign electronically.
Even in lockdown, it may be possible for the witness to be physically present through glass – a car window, or outside your home while you are inside. Use audio (phone) to talk to each other. They can then sign electronically, or you can use contactless pick-up to transfer the hard copy document for signing.
If you cannot arrange for a witness to be physically present, and if you are my client, you will need to arrange for me to meet with you by Zoom (video link) or similar. If you are signing electronically, we will need to use ‘screen sharing’ so I can see you sign the document electronically. You will also need to show your photo ID sufficiently clearly to enable me to compare it with your face and with the copy I already hold. I may not delegate this to anyone else if the witness will not be physically present. Witnessing A&I Forms by video is normally restricted to transactions where the lawyer has known the client for more than a year. This has been relaxed temporarily because of COVID.
If your identity has not previously been verified directly (including through glass), we may require confirmation from another source such as Cloudcheck or perhaps your bank.
Tax statements – for transfer to beneficiaries or to third parties
Tax statements can be signed electronically. They do not need to be witnessed.
Overseas Investment Act declarations – for transfers to beneficiaries or to third parties, or for transfers to an estate
Overseas Investment Act (OIA) declarations can be signed electronically. They do not need to be witnessed.
Conclusion
Video witnessing of statutory declarations and A&I Forms is a temporary measure. It will be reviewed when the COVID emergency formally ends.
These careful procedures are intended to prevent fraud. Once a land transaction has been registered, it is not easy to undo it.
Your own contribution is even more important than these procedural safeguards. You are the person making the declaration or signing the document. You are the one who is saying it is true and correct. If it is not correct, or if you do not understand it, do not sign it!
Finally, electronic signing – and video calls – are refreshing delights for some, and greatly challenging for others. You can do it! Treat it all as another adventure that gives you new skills. There is (usually) no hurry. If it does not work today, try again tomorrow. Get help if necessary. As Winston Churchill said, Never Give Up!
Cheryl Simes (lawyer) – 26 August 2021
References
Contract and Commercial Law Act 2017 s 218(2)(d) – statutory declarations and affidavits are excluded from electronic signatures
Contract and Commercial Law Act 2017 ss 226, 228 – requirements if electronic signatures are used
Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 cl 4 – declarations and affidavits may be witnessed by audio or video link
Oaths and Declarations Act 1957 ss 9, 11 – who may take statutory declarations
High Court Rules 2016 r 9.86 – who may take affidavits outside New Zealand
Authority and Identity Requirements for E-Dealing Standard 2018 – LINZS20018
Authority and Identity Requirements and Electronic Signing of Documents: Interim Guideline 2020 (LINZ OP G 01247)
