Video conferencing in the COVID-19 era

9 April, 2020
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This bulletin covers:

  • Using video conferencing to take instructions and give advice
  • Using video conferencing to do VOI in property transactions
  • Risk issues with video conferencing and with solicitors certificates
  • Risk issues with video conferencing to witness wills and affidavits

In this current environment when we are all trying to minimise contact with other people to avoid the spread of COVID-19 this bulletin highlights some risk management issues around video conferencing especially for witnessing wills and solicitors certificates.

Instructions and advice

When you can’t see your clients face to face video conferencing has obvious benefits over a phone call as it gives you visual cues as to whether they have heard and understood what you have said or whether they want to ask a question. You can usually easily record the meeting, with the client’s permission of course, and send it to the client to watch and listen to again.

Risk management tips

Taking instructions and giving advice is now routinely undertaken via video conferencing but you need to bear in mind the following issues.

  • Clarity of communication – What is the quality of the sound and picture? Can you see the client well enough to recognise them, assess their body language and facial expressions? Can you both hear each other without risk of words dropping out?  Take extra time to make sure the client has really understood your advice by asking them to express the advice back to you in their own words.
  • Nature of the matter or transaction – Are you satisfied the client is not acting under duress or another’s influence? Is the matter one in which the client is being asked to assume an obligation or carry a risk that is potentially disadvantageous to them (such as a finance transaction or guarantee)? Is there someone else in the room putting pressure on them? Can you be sure if you ask the other person to leave that they will? This is particularly important for advice and instructions involving wills and powers of attorney.
  • Keep good file notes – You should make good notes of how the meeting was conducted, who was present, how long it took, what instructions you received, what advice you gave and what you observed if there was anything unusual about the client’s demeanour. Where the matter involves the client taking a risk, warn them of the risk and ask them to explain their reason for taking it – then record their answer in your file note.
  • Confirm advice in writing – This is fundamental to good practice and even more important in the COVID-19 environment you may be working from home, under greater stress and not in your normal routine.  A short email to the client after the meeting to record the essential aspects of their instructions and your advice not only helps to give you a frame of reference when you come back to the client’s matter but could be the difference in years to come if there is some later dispute or claim.

There is a range of software to choose from including Zoom, GoToMeeting, WebX, Microsoft Teams, Skype, Face Time, WhatsApp, Google Hangouts Meet and others. Try doing a search of the term ‘best video conferencing software’ to choose the right software for your needs. When choosing, look at the security of any video conferencing software you are using and ensure the privacy settings are appropriate.

Verification of identity (VOI)

Transactions involving interests in land

  • Using video conferencing to verify identity is not part of ARNECC’s safe harbour steps (see VOI Standard, Rule 2, schedule 8 of Model Participation Rules (MPR).
  • Until 1 July 2020 verifying identity via video conferencing may be considered part of the reasonable steps test (ARNECC Guidance Note 2, question 13).
  • From 1 July 2020 ARNECC will require all VOI to be done face-to-face (version 6 MPR) unless this is changed in light of the current COVID-19 environment.  See ARNECC’s recent notice.

The safest course if you cannot do a face to face VOI is to ask the client to use a VOI agent such as Australia Post or ZipID.

Other transactions – common law duty to take reasonable steps

Practitioners acting in matters outside of the ARNECC VOI obligations still have a common law duty to take reasonable steps to be satisfied that their client is who they claim to be.  Using video conferencing can certainly help as part of the reasonable steps required to be taken.

Some things to consider doing if using video conferencing are:

  • ask the client to send you certified copies of the identification documents to be received before the meeting
  • during the video conference ask the client to hold up the originals of the verification documents to the screen so you can compare them to the copies you hold and the client in the video conference
  • keep a good written record of what you did on the assumption that it might end up being tested in court.
  • be alert during the conference for any behaviours that might raise suspicions about the client’s identity

Solicitors certificates

Require face to face verification

Verifying identity when giving a solicitors certificate needs to be done face to face in person and the recent ARNECC notice does not change that because:

If the verification of identity can’t be done face to face you should not sign the solicitors certificate. However, there is nothing stopping you from giving advice to a guarantor or borrower via video conferencing about their obligations as a borrower or guarantor. The risk management tips raised earlier about using video conferencing should be followed.

An acknowledgement signed by the client that they received the advice from you may satisfy the lender in lieu of a solicitors certificate.

If the lender insists on a solicitors certificate you could refer them to rule 11.8 which prohibits a solicitor, such as a solicitor acting for the lender, from aiding, abetting, counselling or procuring another solicitor to breach rule 11.  Section 39 of the Uniform Law also makes it an offence for anyone, and this would include a lender, to induce a law practice or practitioner to breach the Uniform Law or any rules.

Hazards of Solicitors certificates

In the current financial environment requests from practitioners for advice on loans and guarantees, particularly from second and third tier lenders, appear to be increasing.

Now is a good opportunity to refresh yourself and your staff with LPLC’s extensive resources in relation to the perils of advising in relation to mortgages and guarantees and providing Solicitors certificates:

Witnessing documents

Witnessing the execution of documents such as wills, powers of attorney, affidavits and statutory declarations are going to be increasingly hard as health and safety considerations associated with the pandemic and social distancing requirements increase. These documents all require the witness to be ‘in the presence of’ the person when they sign the document.

Witnessing signatures via video conferencing where required to be done ‘in the presence of’ the signatory has not been judicially approved in Australia. In Pell v The Queen [2019] VSCA 186 the phrase was recently considered in the context of an accused being arraigned in the presence of a jury but that involved different legislation and considerations.

Witnessing wills

Witnessing wills is one of the issues most concerning practitioners in the current environment. Issues when witnessing wills by video conference are:

  • it is unclear whether ‘in the presence of’ includes video conferencing
  • the testator needs to sign in the presence of two witnesses
  • the witnesses also need to sign in the presence of the testator and each other
  • a lawyer as a witness needs to assess whether the testator is freely and voluntarily signing and has capacity
  • how do the witnesses ensure the documents they later receive to sign are the same documents they saw signed?  

Witnessing a will by video conference runs the risk of the will being found to be invalidly executed.

A validly executed will is always the desired objective.  Nevertheless, it’s possible an invalidly executed will may be later proved as an informal will, and in urgent situations an informal will is better than no will.

Risk management tips

  • First ask: do you need to witness the documents? In most cases the answer will be no. While witnessing signatures for wills and powers of attorney or even affidavits is a usual and convenient thing for practitioners to do for their clients it is not necessarily a duty they must perform.
  • At this time when there is not a total lockdown in place there may be instances where witnessing the execution of the will could be safely done in person with the right precautions. Ask yourself:
    • can you view the signing from behind glass or across the room or outside to maintain social distancing measures?
    • can gloves be worn or hand sanitiser used before and after signing?
  • If you are unable to see clients in person to witness their signatures you can still have a video conference to explain the contents of the will as you would normally do. You should then send them the documents with clear written instructions on:
    • how to have the documents executed
    • who can witness their signatures
    • the importance of any time restrictions.
  • There may be times when there is no other way to have the documents executed and time is of the essence. Witnessing a will being signed by video conference may at least provide good evidence for a later application for an informal will if the validity of execution is challenged.
  • The Court of Appeal of the New South Wales Supreme Court in Howe v Fischer [2014] NSWCA 286 said the most that could be required of a practitioner if they were aware of any factors that might frustrate the making of a formal will was to explain the option of making an informal will to the client and the possibility that the court might be expected to declare it a final will if necessary later.
  • The risk that a video conference witnessing may create an informal will should be explained to the client.
    • Make a notation on the document that this has occurred
    • Keep detailed notes of how the process was performed, including how you verified the document you saw signed was the document you signed.   
  • An informal will is a document that has not been properly executed as a will. The Supreme Court of Victoria has the power under section 9 of the Wills Act 1997 (Vic)to admit an informal will to probate if it is satisfied that that person intended the document to be his or her will. The court will have regard to:
    • any evidence relating to the manner in which the document was executed
    • any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
  • For LPLC articles on informal wills

Changes to witnessing requirements

The Federal Court, Family Court, Federal Circuit Court and County Court of Victoria have all published on their website statements about accepting unwitnessed affidavits. Practitioners should check the details for each court, as they are all slightly different, and explain the arrangements to their clients.

The Law Institute of Victoria has asked the Victorian Attorney General to enact emergency legislation to override the need for face to face witnessing. Some of the issues raised here may be clarified soon. For more information on witnessing documents by video conference see the Law Institute of Victoria’s Practice Note for Victorian practitioners taking Will and Enduring Power of Attorney Instructions during COVID-19 and our Law Institute Journal article Video conferencing risks.