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Witnessing documents

In WA, some documents are required by law to be witnessed. Many contracts, including building contracts, are not required to be witnessed. However, having a witness to a contract can be beneficial in ensuring the contract is correctly signed and as evidence that the parties intended to be bound by the terms of the contract.

What is the purpose of a witness?

A witness is a person who observes another person signing a contract or other legal document. The witness also signs the document as proof that they have carried out their witnessing role.

Having a witness to a contract can be beneficial in demonstrating that a contracting party is:

  • who they claim to be;
  • legally able to enter into the agreement;
  • of sound mind at the time of signing; and
  • entering into the contract of their own free will.

The presence of a witness signature assists in demonstrating that the contract execution was legitimate. The witness may be called to give evidence to this in dispute resolution or legal proceedings.

Who can witness a signature?

Who can act as a witness will depend on legislative requirements and the type of document being signed.

Generally, and unless the law specifically requires otherwise, a witness should:

  • be acquainted with the person they’re witnessing for, or have taken reasonable steps to verify their identity (for example, if you have not known someone for at least 12 months, you may take steps to verify their identity by reviewing their photo identification)
  • be at least 18 years of age
  • be of sound mind, not under the influence of drugs or alcohol and
  • be an independent third party to the transaction and not have a financial interest in or be a beneficiary or party of the legal document.

If you are a party to a contract, for example the homeowner or builder, you should not be a witness to the signing of that contract, as you will not be considered an independent third party.

How should documents be witnessed?

Generally legal documents are signed as hardcopies and witnessed in person. However, as electronic execution becomes increasingly popular, it is important that businesses understand how a document should be witnessed.

When determining the most appropriate way to sign and witness your documents, you should consider the following:

  • Are there any legal requirements for the type of document?
  • Can the document be signed and witnessed electronically? For example:
    • building contracts can be signed electronically; but
    • a deed related to a building contract may not.
  • Are there any challenges and risks with the chosen signing and witnessing method?
  • If a witness is not required, would it still be beneficial?

Additionally, there are special witnessing requirements for certain documents.

Special witnessing requirements

Certain documents have special witnessing requirements which must be followed for the document to be valid, binding and enforceable.

Deeds

In WA, signatures in deeds must be witnessed by an independent person who is not a party to the deed. Deeds are not permitted to be signed electronically by individual parties or by their witnesses. This means deeds must be in hardcopy form and signed in ‘wet ink’ (pen).

Companies are permitted to sign deeds electronically. Different witnessing requirements may also apply and should be confirmed by a lawyer to ensure the execution of the deed is legally binding.

Statutory declarations and affidavits

Statutory declarations and affidavits are documents which are accompanied by prescribed written and oral statements. Due to the serious nature of these documents, they are required to be witnessed by an ‘authorised witness’.

Authorised witnesses include a Justice of the Peace and those who hold professional registrations, such as architects, accountants and doctors.

There are various government resources that explain who can witness these documents, along with the relevant rules, which are detailed in full in the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).

As a result of the COVID-19 pandemic, temporary legislative changes were introduced to permit witnessing of statutory declarations to occur by audiovisual communication until 31 December 2022.

Land transactions

Land transactions, such as buying and selling land, also have legislated witnessing requirements.

The list of people who may witness land transaction documents where the party is overseas is narrower than those for statutory declarations. There is also a specific requirement for each signature to be separately attested.

Landgate has further detailed information on signing and witnessing land transfer documents.

To find out more, contact HIA's Workplace Services team

HIA Workplace Services

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