Who can witness an execution?

A section 88B instrument lodged for registration must be attested to by a witness who is not a party to the document see s.36(1D)(b) and s.117 Real Property Act 1900. This is the only legal requirement for valid attestation whether the place of residence of the executing party, or the place of execution, is within the State of New South Wales, another State or Territory of Australia or a foreign country.

The Registrar General also requires the attesting witness to be someone who:

  • is over 18 years of age, and
  • is not a party to the transaction, and
  • has known the person signing the instrument as a party to the transaction for at least a year, or
  • has taken reasonable steps to confirm the identity of that person.

The attesting witness should also include their full name, residential or business address and, if necessary, their authority to sign as a witness, eg solicitor, mayor, managing director, secretary etc.

For further information, see NSW LRS fact sheet - Witnessing Real Property Act Dealings: Witness Obligations