Under Queensland law, prior to 22 May 2020, a deed was required to be in paper, signed under seal and in the case of an individual their signature was required to be witnessed. These requirements have been modified from 22 May 2020 until 31 December 2020 for all forms of deed whether under statute or common law, except for general powers of attorney, (which may also be electronic but are subject to different requirements).
The most significant changes are that a deed may be signed in electronic form and signing of the deed by an individual is not required to be witnessed.
According to the Regulation an instrument in either paper or electronic form will be valid as a deed if:
A further beneficial change is that a deed may be signed in counterparts that are either physical or electronic.
An individual may sign a deed (paper or electronic) without a witness.
An electronic deed may be signed by an individual using any form of electronic signature that identifies the signer and indicates their intention to be bound to the document. This is similar to the requirements of the Electronic Transactions Queensland Act 2001, s14, but unlike that section, no consent is required to the electronic signature method for a deed.
If the individual is signing as an agent or attorney of another entity there is no requirement for the agent or attorney to be authorised by way of a deed.
A corporation may sign a deed in paper or electronic form by:
As with an individual, if the execution is electronic the signing method must identify the signer and indicates their intention to be bound to the document.
If options (a) – (c) are used, this will comply with the requirements of the Corporations Act 2001 which now also extends to electronic signing. A party may rely upon the assumptions in the Corporations Act 2001.
If the deed is signed for a corporation by an agent or attorney, electronic execution is prima facie valid, but it will be prudent to seek confirmation of their authority to sign for the company.
The Regulation extends the benefits of electronic signing to both statutory corporations, corporations sole and foreign corporations.
Specific requirements are prescribed if the deed is to be lodged in the Titles Office in support of another instrument. If the deed is signed in counterpart, all counterparts must be produced. If the deed is electronic a copy of the deed may be lodged if certified by a qualified person listed in the Regulation.
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Professor Sharon Christensen, Consultant