Head 1

Question 1

Key sections of the RW(S)A 1995?

Answer 1

ss 1 - 13 (excluding 10)

schedule 2

Question 2

General rule that writing is not required for the constitution of a contract, unilateral obligation or trust.

Answer 2

s 1(1)

Question 3

Qualification to the general rule, listing different situations in which writing must be used (and providing for the form of writing required: “a written document complying with section 2 of this Act”)

Answer 3

s 1(2)

Question 4

5 types of juridical act requiring writing from s 1(2):

Answer 4

1. Wills and codicils (s 1(2)(c)
2. Creation, transfer, variation or extinction of a real right in land (s 1(2)(b)
3. Contrat or promise for the creation, transfer, variation or extinction of a real right in land (s 1(2)(a)(i)
4. Gratuitous promise except in the course of business (s 1(2)(a)(ii)
5. Truster-as-trustee trust (s 1(2)(a)(iii)

Question 5

S 1(7)

Answer 5

Gives a definition of a “real right in land” as ‘any real right in or over land, including any right to occupy or to use land or to restrict the occupation or use of land but does not include:
⁃ A tenancy
⁃ A right to occupy or use land; or
⁃ A right to restrict the occupation or use of land if the tenancy or right is not granted for more than one year etc.

Question 6

What if formal writing is not used when required?

Answer 6

In general the purported right is void.

HOWEVER In the case of contracts, promises and trusts (only) the right is valid in cases where the person seeking to deny the contract etc is personally barred as a result of the actings of the other party (s 1(3)-(5)).

Question 7

Personal bar under s 1(3)-(5) does not apply to:

Answer 7

s 1(2)(b) or (c) - the creation (etc) of real rights

Question 8

Documents which require writing under s 1(2) shall only be valid if they have been subscribed by the grantor of the document

Answer 8

s 2

Question 9

s 2(2)

Answer 9

Concerns contracts which are required to be in writing - a written offer must be subscribed by the offeror and the written acceptance must be subscribed by the acceptor

Question 10

What does subscription mean?

Answer 10

Signing at the end of the last page (excluding any annexation)

Question 11

Subscription is provided for by…

Answer 11

s 7

Question 12

What if there is not enough physical space for all the granters to sign at the end of the document?

Answer 12

S 7(3): as long as one granter signs at the end of the last page and all other granters sign on an additional page

Question 13

Does a signature have to be legible?

Answer 13

Stirling Stewart v Stirling Craufurds Trustees (1885) - illegibility is not in itself a reason for denying legal effect to a signature.

Question 14

Can someone sign on your behalf?

Answer 14

Yes - a person may appoint an agent to execute the deed on his behalf. The agency need not be in writing (although often it is created by a formal power of attorney (s 12(2))

Question 15

S 9 and schedule 3

Answer 15

Notarial execution - if a person is blind or unable to write, the deed may be executed on his behalf by a solicitor, advocate, justice of the peace or sheriff clerk.

Question 16

What section provides for signing?

Answer 16

Section 7(2) (a)(b)(c)

Question 17

Section 7(2) sets out 3 different ways of signing a document. Most signatures will conform to option…

Answer 17

B

Question 18

How do juristic persons in general sign?

Answer 18

This is provided for under schedule 2.

A separate paragraph is given for every different type of juristic person.

Question 19

How do partnerships sign?

Answer 19

Sch.2 Para 2(1),(2):

Signature of partner or of authorised person - may use either own name or firm name (Dorothy Murray or Dundas & Wilson)

Question 20

How do partnerships sign?

Answer 20

Sch. 2 Para 3A(1):

Signature of member of the LLP

Question 21

How do local authorities sign?

Answer 21

Sch. 2 para 4(1)):

Signature of proper officer of the authority.

Question 22

How do “other bodies corporate” sign?

Answer 22

Sch. 2 para 5(1),(2):

Signature of member of governing body, or secretary, or authorised person.

NB this is wide ranging and applies to non British companies.

Question 23

How is a deed made probative?

Answer 23

Execution under s 3 must be followed.

Question 24

What does probative mean?

Answer 24

Presumed to be validly executed.

Question 25

How is s 3 probativity achieved (generally speaking)?

Answer 25

Normally under s 3, probativity is achieved by attestation (witnessing) - NB where the granter is a juristic person there is usually an alternative on offer.

Question 26

How many requirements are necessary under s 3 to make a deed probative?

Answer 26

5

Question 27

Section 3, Step 1:

Answer 27

S 3(1)(a): Exactly the same as under s 2 - granter must subscribe the deed (but only by methods (i) standard or (ii) longstop.

Question 28

Section 3, Step 2:

Answer 28

A witness is present. (s 3(4)(c)) Witness must be: 1) 16 or over, 2) normal mental capacity, 3) "know" the granter (s 3(5)) Where the deed is signed by more than one person, the witness must not be another granter (s (4)(b))

Question 29

Section 3, Step 3:

Answer 29

s 3(7): The granter must either sign in the witness's presence or he must acknowledge his signature to the witness.

Question 30

Section 3, Step 4:

Answer 30

The WITNESS must sign to indicate that they witnessed the event, either by (i) standard, or (iii) longstop. The same person may witness the signatures of more than one granter, and in that case need only sign once. This signature must be "one continuous process" with the event witnessed (ie either subscription or acknowledgement.)

Question 31

Section 3, Step 5:

Answer 31

s 3(1)(b) & (4)(f) The witness must be designed (by name and address, and usually the place and date of execution are given) in the deed or in the testing clause. This may be added at any time before the document is founded on in legal proceedings or is registered for preservation in the books of Council and Session or in sheriff court books (s 3(3))

Question 32

Under s 3(8)(b)

Answer 32

Where the document bears to state the date or place of subscription, there shall be a presumption that the document was subscribed by that granter on the date or at the place as stated.

Question 33

The testing clause is normally added/completed....

Answer 33

After execution

Question 34

Since probativity is all about presumptions, the test for whether a deed is probative is simply whether it...

Answer 34

Appears to have been validly executed. (s 3(1))

Question 35

The validity of a deed's execution may be attacked in two different ways:

Answer 35

1. Direct attack (lead evidence to show that the granter did not in fact subscribe - if successful, deed is VOID) 2. Indirect attack s 3(4):

Question 36

How does a direct attack on the validity of a deed work?

Answer 36

Lead evidence to show that the granter did not in fact subscribe - if successful, deed is VOID

Question 37

How does an indirect attack on the validity of a deed work?

Answer 37

Indirect attack s 3(4): (lead evidence to show that attestation (or equivalent) was not properly carried out - if successful, deed is improbative but NOT NECESSARILY INVALID. The onus would then shift onto the person seeking to found on the deed to show that it was in fact subscribed by the granter

Question 38

Attestation is the ONLY method of attaining probativity in cases where the granter is a...

Answer 38

natural person or a partnership (except by recourse to section 4)

Question 39

Attestation is one of the two available methods of attaining probativity in...

Answer 39

All other cases.

Question 40

Schedule 2 provides...

Answer 40

special 'bespoke' versions of s 3 (probativity) for each type of juristic person.

Question 41

Subject to minor exceptions, only probative deeds can be...

Answer 41

Registered in the Register of Sasines or in the Books of Council and Session and sheriff court books (s 6) In practice the same rule is applied to the land register.

Question 42

An executor cannot receive confirmation by the court (on the basis of a will) unless the will is...

Answer 42

probative (Succession (S) Act 1964 s 21A)

Question 43

First way that an improbative deed can be converted into a probative one?

Answer 43

If the granter is still alive and readily available, he can acknowledge his subscription to a witness who can sign - it then becomes probative under s 3.

Question 44

Second way that an improbative deed can be converted into a probative one?

Answer 44

An application can be made to the Sheriff Court under s 4 to have the deed endorsed with a certificate stating that it was subscribed by the granter. On endorsement, the deed is then probative by court certificate.

Question 45

Definition of annexations:

Answer 45

s 12(1): "Any inventory , appendix, schedule, other writing, plan, drawing, photograph or other representation annexed to a document."

Question 46

How are annexations incorporated as part of the deed?

Answer 46

s 8 If: 1) Main deed contains words of incorporation 2) The annexation is identified on its face as being the annexation referred to in the document 3) In the case of plans and other forms of description of land, the annexation must be signed.

Question 47

Definition of alterations:

Answer 47

s 12(1) as including: "Interlineation, marginal addition, deletion, substitution, erasure or anything written on erasure."

Question 48

What is the fundamental distinction regarding alterations?

Answer 48

Pre-subscription and post-subscription alterations. A pre-subscription alteration is part of the deed. A post-subscription alteration is not part of the deed, unless the granter chooses to execute it afresh.

Question 49

How can you tell whether an alteration was made before or after subscription?

Answer 49

In the case of s 3 deeds, s 5(4)+(5) creates a presumption that any statement in the testing clause (or deed itself) that the alteration was made before subscription is presumed to be true. [[In other cases when there is litigation on the deed and it does not benefit from this presumption, then it will be necessary to lead (oral) evidence on when it was made]]

Question 50

Prior to 1995 what were the two ways in which one could make a document or deed valid?

Answer 50

1. Attested (witnessed) writing - roughly equivalent to s 3 (probative) - attestation conferred not merely probativity but validity 2. Holograph writing - roughly equivalent to s 2 (imporbative)

Question 51

Execution of a deed does not make it immediately legally effective - what else is also required?

Answer 51

Delivery

Question 52

Exception to the rule that deeds required delivery?

Answer 52

Historically there was a rule that if the husband signed a deed in favour of another member of the family, he didn't have to deliver it

Question 53

How is delivery achieved?

Answer 53

1. Granter must hand over or send the deed with the intention of delivery it. 2. The grantee must accept delivery

Question 54

Standfield's Creditors v Scot's Children 1696

Answer 54

An assignation had been signed by Standfield in favour of Scot. Standfield left the deed on his table and told Scot it had been subscribed and directed for him [Scot]. Standfield was then strangled. The question was whether the deed had or had not been delivered? The court held that the deed was not delivered. This is because until the ultimate act of 'delivering' the letter had been carried out, the deed could still have been cancelled or changed by Standfield.