We’ve had a significant amount of interaction across our membership and users more broadly of the Smarter SMSF platform about the temporary use of digital signing around SMSF deeds, including for fund establishment, deed upgrades, change of trustees, LRBAs and more.
In a previous blog post we explored the measures that provided temporary relief for electronic signing of SMSF deeds, where section 127(1) of the Corporations Act 2001 was amended for a period of six months to allow for the electronic execution of documents, including deeds. This relief only however applies to directors, secretaries and other officers allowed to sign under the Corporation Act; it does not cover situations where an SMSF may have individual trustees in place.
State of play
It is therefore important in these situations to consider the current state of play around state-based rules for that would allow for the electronic execution of deeds.
The table is a summary (current as at June 2020) of each state or territory whether rules changes allow for the electronic signing of deeds where a corporate trustee is not is place:
|NSW||The Electronics Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020||6 months||Yes|
|VIC||COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020||6 months||Yes|
|QLD||COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020||31/12/2020||Yes|
|SA||COVID-19 Emergency Response (Section 17) Regulations 2020||N/A||No, requires ‘wet ink’|
|TAS||COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020||N/A||No notice that it applies|
|WA||No measures put in place||No, but may be enforceable as a contract in certain circumstances|
|ACT||No measures put in place|
|NT||No measures put in place|
If any further changes occur to any states or territories, we will update this table accordingly.