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