documents and execution

Question 1

meaning of doc

Answer 1

deed creation, transfer, variation or extinction of real rights examples = stand sec

Question 2

ROWA 1995 1A AND 9A

Answer 2

divides written doc into electronic and traditional doc

Question 3

execution

Answer 3

simply means the signature valid by law.

Question 4

ROWA background

Answer 4

Part 1 s.1 when writing is required
Part 2 s.1A-9 traditional doc
Part 3( 9A-9G) electronic doc
Part 4 (s10-15) Gen provisions
interpretation section=s.12

Question 5

when is formal writing required

Answer 5

if not mentioned on the list in s.1(2) then as stated in s.1(1) there is no need for formal writing.

wills and codicils s.1(2)(c)= on the list so needs formal writitng

Question 6

4 reasons why writing is necessary

Answer 6

1. to impress upon the parties of the seriousness of the situation.
2. to reduce fraud
3. to provide evidence of juridical act
4. to allow reg on land reg

Question 7

what kind of writing is needed

Answer 7

defined s.1(2) Must be EITHER a traditional doc s.2 OR a an ELECTRONIC doc that complies with s.9B

Question 8

what happens if formal writing is not used when it is required?

Answer 8

usually purported right will be VOID.
but in the case of TRUSTS, PROMISES AND CONTRACTS ONLY the right is VALID where the person seeking to deny the contract is PERSONALLY BARRED as a result of other actings s.1(3)-(5)

Question 9

what is needed for a TRADITIONAL doc to be valid

Answer 9

s.2(1) ROWA defines
subscription by the person granting the doc
s.2(2) rowas contracts offer and acceptance MUST BE subscribed

Question 10

s.7 rowa

Answer 10

subscribstion meaning given in s.7(1)
7(3) where there are multiple granters
7(2)must sign at end there are different ways to sign specified by s.7
Juristic persons (companies) cannot write and so someone has to sign for them. schedule 2 s.7(7)

Question 11

categories of juristic person

Answer 11

ordinary partnerships s.7(7) schedule 2 para 2 with llp s.7(7) schedule 2 para 3 A ]to any body coporate = para 5(1)
companys.12(1) reference to s.1(1) companies act
non uk company= other body corp and not company

Question 12

stirling stuart v stirling Crawford trs

Answer 12

signatures do not need to be legigible

illegible signature is valid it is NOT probative

Question 13

S.12(2) ROWA

Answer 13

person can appoint power of attorney to execute doc on their behalf

Question 14

s.9 sch 3

Answer 14

if a person is blind a document can be executed on their behalf by sol or adv or justice of peace

Question 15

probativity

Answer 15

s. 3(1)-(3) what probative doc looks like

s. 3(4-(7) what must be proved if the probativity of the doc is to be successfully challenged in court

Question 16

s.3(1)a rowa

Answer 16

granter subscribes in usual way but without using method set out in 7(2)(c) makes it formally valid under s..2 the ONLY purpose of doing anything more is to make sure it is probative

Question 17

s.3(2) ROWA

Answer 17

wills and testamentary doc must be signed on every pg

Question 18

s.3(4) ROWA

Answer 18

witness +vely must be over 16
capax
know the granter
-velythe witness cannot be another granter

Question 19

s.3(7) ROWA

Answer 19

granter must sign in the witnesses presence OR acknowledge their signature to the witness.
mclure v mclures ex- it may be able to acknowledge by actions

Question 20

s.7(5) ROWA

Answer 20

the witness signs (NOT SUBSCRIBES) this may be done by method A and B BUT NOT C.
the same person can witness the signatures of more than one granter.

signature and witness must be a continuous process

This means the witness must sign immidiatly after the event witnessed :Thomson v CLARKSON trs
this should prevent sub of doc.

As a signature can be acknowledged by the granter at any time after it was made there may be a considerable gap in time BUT the witness must sign as soon as the Signature has been ACKNOWLEDGED

Question 21

THE TESTING CLAUSE

Answer 21

s. 1(b) and 4(f) = the witness is designed in the testing clause (full name and address)
s. 3(3) the time limit for this to be done by

Question 22

when is a doc probative

Answer 22

the rule here is that a doc is prob if it appears to have been validly attested s.3(1)
can be probative under s.3(1) but not formally valid under s.2

Question 23

three separate presumptions

Answer 23

1. prob doc = presumed subscribed by granter thus valid s.2 (s.3(1))
2. prob doc = presumed to have been subscribed b the date stated in testing clause s.3(8)
3. a prob doc= presumed to be subscribed by the granter in the place stated in the doc or testing clause s.3(8)

PRESUMPTIONS ONLY CAN BE REBUTTED

CONFINED TO Q OF EXECUTION NOT APP TO LACK OF CAPACTY Q

Question 24

attacking the doc

Answer 24

indirect eveidence to show attestation was not carried out properly s.3(4) SETS OUT LINES OF INDIRECT ATTACK= IMPROBATIVE BUT NOT INVALID
The evidential burden passes to the person seeking on the doc to show that it was subscribed.

direct evidence that shows granter did not subscribe= VOID

Question 25

ATTESTATION

Answer 25

Only method of gaining prob in cases where the granter is a natural person or PARTNERSHIP apart from recourse s.4

Question 26

schedule 2 s.4(5) and 5(5)

Answer 26

Probativity local authorities and bodies corp. sealing a doc with company seal must be done with someone who is authorised

Question 27

schedule 2 s.3 (5)

Answer 27

Probativity UK companies doc signed by 2nd signatory 2 directors/ director and sec/ 2 authorised person cCategories CANNOT BE MIXED!!

Question 28

schedule 2 s.3 A(5)

Answer 28

LLPs 2 memebers of LLP

Question 29

s.2 or s.3 ?

Answer 29

s.2 a granter can opt for bare sub or sub + attestation s.3 involves more work but may do it to ensure 1. doc is PROBATIVE otherwise 20 years time might be hard to prove sub. in practice most deeds prepped by sol are 2. REG only probative doc reg in LAND REG 3. CONFIRMATION OF EXECUTORS- the appointment of exec cannot be confirmed by court unless probative s.21A 1964

Question 30

converting improbative doc into probative 2 possibilties

Answer 30

granter is alive can acknowledge this is their signature the doc is then probative s.3 OR application made to sherrif court under s.4 to have doc endorsed. procedure in the act of sedurunt. evidence of sub must be produced s.4(3)

Question 31

s.8 rowa

Answer 31

ANNEXATION

Question 32

s.12(1)

Answer 32

annexation and alterations are defined | comes after sub

Question 33

s.5

Answer 33

alterations reg by s.5 basic is pre subscription and post subscription alterations an alteration made after sub is not part of doc an alteration made pre sub = part of doc

Question 34

traditional doc execution in counter part

Answer 34

s. 1-3 legal writing counter parts delivery scot act 2015 s. 1(2) 10 people can execute 10 separate same doc. (supposed to tackle big cormercial contracts that need signing) nominated delivery or deliver all ten doc amongst themselves s.1(6)(7) and2 then deemed to be one single doc

Question 35

part 3 1995 act

Answer 35

ELECTRONIC DOC = formally valid is AUTHENTICATED by granter (sub) =probative (wit) if APPEARS so AUTHENTICATED and has to be certified by a QUALIFIED CERTIFICATE issued by a 3rd party ss9A AND 9C AUTHENTICATING= an advanced electronic signature most will sign through an agent CERTIFIED= statement incorped in logically associated with doc that can establish the signature as a valid means of establishing authenticity MUST be a qualifies TRUST SERVICE PROVIDER PIN protected

Question 36

bilateral v unilateral

Answer 36

Bilateral= contract granted by all parties involved Unilateral= trust deed granted by one party in favour of another such deeds are signed as s.2 requires Unilateral doesn't take affect on signing but on delivery of the deed. delivery = traditional doc is post/ placing doc in hands of grantee ELECTRONIC DOC= s.4 /9F must be agreed/ be reasonable in all circumstances.

Question 37

creditors of sir james stamfield v the children of scot bristo

Answer 37

left deed on desk had not delivered the assignation thus held that although signed that had not been delivered to its grantee and had no legal effect