Many important documents require an oath, affirmation or declaration to validate their authenticity, be used as evidence in Court, or to comply with legislation/rules surrounding their use. It is, under normal circumstances, integral that these oaths, affirmations and declarations are taken in person. With the requirements of COVID-19 Alert Levels – including physical distancing – the ‘normal’ approach is not possible.

Parliament therefore issued an Immediate Modification Order (IMO) under section 15 of the Epidemic Preparedness Act 2006. IMOs take the form of Orders in Council and essentially rewrite parts of the law where there is a statutory requirement or restriction that is impossible or impracticable to comply with during an epidemic. The IMO relevant to oaths, affirmations and declarations was the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020.

The purpose of this IMO was to temporarily amend the Oaths and Declarations Act 1957 which sets out the requirements for making oaths, affirmations and declarations. The amendment allows oaths, affirmations and declarations to be taken and witnessed remotely using audio-visual or audio links. Despite this fundamental change, the person taking the oath, affirmation or declaration must still ensure that the person making the oath, affirmation or declaration:

• Is the person signing the document;
• Has read and understood its contents and believes its contents to be true; and
• That the exhibits attached to the document are those referred to in the oath, affirmation or declaration.

This IMO also allows entities that receive statutory declarations to authorise members of their staff to take statutory declarations instead of a lawyer, JP, Deputy Registrar in a Court or other person who would normally do it. This is due to the possible difficulty in finding someone to take statutory declarations as Court counter services are closed to the public and the temporary suspension of Justices of the Peace.

Note these changes made by the IMO are temporary; once the Epidemic Notice is lifted in New Zealand the law will go back to the position prior to COVID-19.

How can a person take an oath, affirmation or declaration remotely?
The best approach is to set up a meeting for the oath, affirmation or declaration via an audio-visual link such as Skype/Zoom/FaceTime/Messenger. With the audio-visual link it usually becomes possible for the person taking the oath, affirmation or declaration to ensure the identity of the person is established, that the right document is being looked at, that any attachments referred to are attached, and that the person understands it in its entirety.

Since this approach is not as secure as it would be in person, the person taking the oath needs to be satisfied that all usual requirements are satisfied. It’s important that the quality of the audio-visual link enables the oath, affirmation or declaration taker to clearly witness both the person making the oath, affirmation or declaration and the document with attachments (if any).

If the person making the oath, affirmation or declaration is unknown to the person taking it, it is essential they first check reliable photographic identification (normally driver’s licence or passport). It is also vital that both parties are reading the same document(s) and that each page being signed or initialled is clearly visible.

How should a written oath, affirmation or declaration be signed?
The person making the oath, affirmation or declaration should sign the document during the audio-visual or audio link.
The signed document then must be sent to the person taking the oath, affirmation or declaration as soon as possible after the audio-visual or audio link so that they can also sign it. This can be done electronically through scanning or photograph. At Alert Levels 1-3 this could also be done through post or courier. At Alert Level 4 the document can only be posted or couriered if it is an essential “good”.

Although not mandatory, it would be wise for the person taking the oath, affirmation or declaration to note on the document that it was taken by audio-visual link.

If audio-visual communication is not possible?
This IMO also allows the use of an audio-link such as a telephone to take oaths, affirmations or declarations. If this method is used however, precautionary measures are once again necessary to satisfy the usual requirements.

The person taking the oath, affirmation or declaration over the phone should:

• Read out the document(s) in full;
• Be fully informed about the contents of the oath, affirmation or declaration; and
• Ensure that the person making the oath, affirmation or declaration is known to them or has some way of verifying their identity.

Final Notes
It is not necessary for the person taking the oath, affirmation or declaration to also sign a certificate setting out the circumstances in which the oath, affirmation or declaration was made. Nonetheless it might be a good idea to do so to give the entity receiving the oath, affirmation or declaration confidence that the requirements have been complied with.
The New Zealand Law Society has provided a template for lawyers showing what a certificate could look like as well as other guidance on:

https://www.lawsociety.org.nz/practice-resources/the-business-of-law/legal-practice/opinion-administration-of-oaths-and-declarations-in-circumstances-of-mandatory-self-isolation.

A lawyer has a duty to inform you up front of any costs associated with taking (witnessing) your oath, affirmation or declaration and to charge only a fair and reasonable fee.

If you are still finding it difficult to arrange for an oath, affirmation or statutory declaration you should talk to the entity you are providing the oath, affirmation or declaration too. Some flexibility has been given to some entities to do things a little differently during COVID-19 and your circumstances might be workable.

If you need advice or assistance in dealing with an oath, affirmation or declaration, then contact the Barter Law team.

 

This blog is published for general information purposes only and is not intended to constitute regulated services under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The blog posts should not be relied on as legal advice. If you require legal advice you should always contact a lawyer to provide you with specific legal advice on your situation.

A cornerstone of the validity of a Will is that it must be signed by the Will-maker in the physical presence of two adult witnesses (section 11 of the Wills Act 2007). The witnesses must not be a beneficiary, or related to any of the beneficiaries, of the Will they are witnessing. The witnesses must each also sign the Will and identify themselves (by name, address and occupation).

A problem therefore arises around the execution of a Will during COVID-19 Alert Levels 3 and 4. Even during level 2, it may be difficult for vulnerable people to properly comply with the witnessing of a Will as they must remain isolated.

In response to this dilemma, Parliament has issued an Immediate Modification Order (IMO) under section 15 of the Epidemic Preparedness Act 2006. IMOs take the form of Orders in Council and essentially rewrite parts of the law where there is a statutory requirement or restriction that is impossible or impracticable to comply with during an epidemic.

The IMO related to signing and witnessing Wills is named the Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020 and came into force on 17 April 2020. This IMO amends section 11 of the Wills Act 2007 in that it allows Wills to be signed and witnessed using audio-visual links (Skype, Zoom, Facetime, etc.) in the following ways:

• Witnesses can witness the will-maker sign a copy of the Will by audio-visual link;
• Witnesses can also sign a copy of the document in front of the will-maker via audio-visual link;
• A person signing on the will-makers behalf pursuant to section 11(3)(b) can sign in front of the will-maker through audio-visual link from another place;
• Anyone that signs a copy of the Will must make it clear that they signed through audio-visual link because an epidemic notice is in force; and
• Photographs or scans of the signed copies of the Will must be sent as soon as practical to a person who has been chosen to hold the documentation. If a lawyer has been involved in preparing and witnessing the Will, they can hold the signed copies of the Will.

The changes described only apply to Wills made while the Epidemic Notice is in force. Once the Epidemic Notice for COVID-19 is lifted, the law will return to its pre COVID-19 position. You will not be required to make another Will after the COVID-19 epidemic ends as it is a valid will unless you want to change or revoke it.

In special circumstances, for example where you cannot get your Will signed and witnessed either in-person or by audio-visual link due to the restrictions you can get it signed and witnessed after the restrictions have ended. The Will may be written out on paper or typed up electronically so that the Will maker’s intentions on their death are made clear in writing. It is important to let the people you want to be witnesses know that you want them to witness your Will after the restrictions have ended. You should also make it clear in the Will that you cannot get it witnessed due to the epidemic.

This approach does not comply with the fundamental requirements of a valid Will. However, the Wills Act gives the High Court the power to make an order declaring a will to be valid even if it doesn’t comply with the formal requirements – but only if it is satisfied that the document expresses the now deceased person’s intentions. Potentially a difficult test to satisfy if the Estate is being contested.

If you need a will made then contact the Barter Law team.

 

This blog is published for general information purposes only and is not intended to constitute regulated services under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The blog posts should not be relied on as legal advice. If you require legal advice you should always contact a lawyer to provide you with specific legal advice on your situation.