Illiterate or incapacitated persons

The following applies to Real Property Act dealings, Water Access Licence dealings and the General Register.

An illiterate person may execute a dealing or document by making his or her mark. In addition to the normal attestation the witness must certify that:

'the contents of this instrument were read over and explained to the said ... who to the best of my belief understood the nature and effect thereof'.

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [250.500]; s38(1B) Conveyancing Act 1919.

A person who is unable to sign a dealing or document because of illness or incapacity may direct another person to sign the name of the incapacitated person. The execution must be attested by a prescribed witness, see Schedule 9 Part 1, 2 Conveyancing (General) Regulation 2013.  In addition the prescribed witness must certify that:

'the signature was affixed by the direction of and in the presence of the party whose signature it purports to be'.

See s38(1A) Conveyancing Act 1919.