In South Australia there are many documents that require witnessing from witnesses who do not necessarily need to be a solicitor or Justice of the Peace.
For example, Memorandum of Transfers required to register the change in ownership of property, need to be witnessed, but can be witnessed by any adult that is not a party to the transaction.
There are a number of other documents such as Statutory Declarations and Affidavits that need to be witnessed by either a Justice of the Peace or a solicitor.
There are many cases which are and have been before the courts that relate to the execution of documents. Those cases can involve either allegations of fraudulent activity (where the execution and even the witness) are potentially a forgery or the matter may centre around the date of the execution of a particular document that was signed and witnessed.
We have prepared a check list that should be followed when witnessing documents whether you are a Justice of the Peace or not . The role of the witness is important as by witnessing a document you can find yourself embroiled in court proceedings and asked questions about your involvement in the execution and witnessing of certain documents.
When you witness a document you should:
Make sure you are clear as to the type of document you are being asked to witness. If you are not a Justice of the Peace, that you have the ability to witness that document.
Look in detail at the type of document to make sure it does not contain any provisions that are not complied with or not complete. You should not witness a document that has blanks or is incomplete.
If the documents are an Oath or an Affirmation that needs to be signed by a solicitor or Justice of the Peace, that person needs to make sure that the Oath or Affirmation is carried out correctly and the person signing the documents should be informed by the Justice of the Peace that if anything is found to be untruthful that person may be charged with an offence and be liable to penalties including imprisonment.
You need to make sure that each proposed signatory to the document is the person named in the document and the spelling of their full name and address is correct .
It is essential that you sight proof of the identity of that person and it is recommended that you do this by sighting an official document that incorporates a photo such as a driver’s license or passport.
You should also satisfy yourself that the person is not under duress in signing the document and also has the mental and physical capacity to sign the document.
It is important that you do not attempt to give any advice in relation to that document. This is especially the case if you are a Justice of the Peace as the person signing the document may presume that you have some legal training and ability to provide advice in relation to the document.
Check through the document for any alterations, spaces or admissions to ensure that they are suitably initialed by both the person signing and yourself.
Check the document to determine whether or not it has any annexures. If the document refers to annexures but they are not attached you should not witness the document.
You need to make sure that the document is signed by that person in your presence.
Do not be tempted to witness a document that has not been signed in your presence.
Whilst you need to follow the witnessing clause detail, it is standard that you print your full name and witness qualifications under where you have signed. If two or more people are to sign it is advisable that you witness each signature separately. If only some of the people sign in front of you, mark clearly on the document that you witnessed their signatures only.
It is essential that you ensure the document is correctly dated.
Importantly, you should keep a record, preferably a photocopy of the document that you have executed and also the proof of the identity that you relied upon in witnessing that document.
We hope that the above check list provides you with some guidance in relation to execution of witnessing documents. You must be prepared at any stage in the witnessing process to decline to witness a document if things do not appear to be in order . In most situations you would in fact be likely to be assisting that person in making sure that the witnessing of that document is correct as the defect in the execution process may be used to void that document.
