Head 1: Execution of Deeds Flashcards
(39 cards)
What does s1 of the RWSA 1995 provide for?
The general rule that writing is not required for the constitution of a contract, unilateral obligation or trust.
REMEMBER: 1995 Act applies to deeds executed on or after 1 August 1995.
What does s2 of the RWSA 1995 provide for?
- The is a qualification to the general rule e.g. contracts for “creation, transfer, variation or extinction of a real right in land”
- Lists 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”)
What are the 6 juridicial acts which require writing under s.1(2)?
(A) Wills and codicils (s 1(2)(c)).
(B) Creation, transfer, variation or extinction of real right in land
⁃ otherwise by the operation of a court decree, enactment or rule of law (rule of the common law, for example it is sometimes possible to extinguish a right without writing).
(C) Contract or promise (“unilateral obligation”) for (B) (s 1(2)(a)(i)).
⁃ Standard example is a contract for the sale of land (usually known as missives of sale). The contract for the sale of land must be in writing in accordance with s 1(2)(a)(i)
(D) Gratuitous promise, except in the course of business (s 1(2)(a)(ii)).
(E) Truster-as-trustee trust (s 1(2)(a)(iii)).
What is the definition of a “real right in land”?
- s 1(7) - this 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.
What are the consequences if formal writing not used when required?
⁃ In general the purported right is void. But 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)).
⁃ Personal bar does not apply to s 1(2)(b) or (c) - the creation etc of real rights.
What is a deed?
A ‘deed’ is a juridical act constituted in writing - a document which has legal effect.
How are deeds classified? Give examples.
Deeds are often classified as either inter vivos or mortis causa deeds.
1. Inter vivos deeds are those granted by persons during their life and which take effect during their life. Mainly: ⁃ Disposition ⁃ Assignation ⁃ Standard security ⁃ Lease
- Testamentary (Mortis causa) deeds are granted by persons during their life but which only take effect on death. Mainly:
⁃ Wills.
- Assignation standard security lease (bilateral)
- Trust disposition and settlement codicil
What is the requirement for the formal validity of traditional documents?
- s 2 RWSA 1995 requires that documents which require writing [under s 1(2)] shall only be valid if they have been subscribed by the grantor of the document. If there is more than one grantor then the document must be subscribed by each grantor.
- Since most deeds are unilateral it is only the grantor who is required to subscribe the documents.
[s2(1) No document required by section 1(2) of this Act shall be valid in respect of the formalities of execution unless it is subscribed by the granter of it or, if there is more than one granter, by each granter, but nothing apart from such subscription shall be required for the document to be valid as aforesaid.]
How must the offer and acceptance be subscribe in a contract or unilateral obligation for the creation, transfer, variation or extinction of a real right in land?
In contracts constituted by offer and acceptance, both the offer and the acceptance must be so subscribed by the granter or granters thereof (as in s2) (s 2(2)).
[s2(2) A contract mentioned in section 1(2)(a)(i) of this Act may be regarded as constituted or varied (as the case may be) if the offer is contained in one or more documents and the acceptance is contained in another document or other documents, and each document is subscribed by the granter or granters thereof.]
What does subscription mean? In which provision is this? [Must know all of this!!]
Subscription (this means writing underneath) is provided for by s 7 RWSA.
**Section 7 RWSA 1995
(1) Except where an enactment expressly provides otherwise, a document is subscribed by a granter of it if it is signed by him at the end of the last page (excluding any annexation*, whether or not incorporated in the document as provided for in section 8 of this Act).
…
[Multiple granters] (3) Where there is more than one granter, the requirement under subsection (1) above of signing at the end of the last page of a document shall be regarded as complied with if at least one granter signs at the end of the last page and any other granter signs on an additional page.
- *
- Legal documents are often drafted with appendices or schedules annexed at the end (like schedules in a statute). When s 7(1) refers to annexation, it is these schedules and appendices which are being referred to. It is the document proper to be signed, not the appendices.
- If there are multiple grantors then each granter must sign.
What if there is not enough physical space for all the granters to sign at the bottom of the document?
This is dealt with expressly by section 7 (3): as long as one granter signs at the end of the last page
and all the other granters sign on an additional page.
What is the special position of the Queen?
The Queen has a special position in which she can superscribe rather than subscribes (this means she signs at the top of the document rather than the bottom).
This is provided for by s 13(1)(a)
Does the signature have to be legible? Which case litigated this principle?
Signature need not be legible:
⁃ This has been litigated a number of times; one example is Stirling Stuart v Stirling Crawfurd’s Trs (1885) 12 R 610:
⁃ It was held in this case, and has been held in other cases, that illegibility is not in itself a reason for denying legal effect to a signature.
⁃ However, there are certain rules concerning what a signature must consist of. If a signature is illegible it may be difficult to know whether the rules have been complied with or not, and therefore difficult to know whether it is valid signature or not. The practical effect of all this is that clients should be encouraged to sign legibly.
Do you have to sign a traditional document yourself?
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)).
Additionally, under section 9, if a person is blind or unable to write, the deed may be executed on his behalf by a solicitor or advocate or justice of the peace or
sheriff clerk. This is sometimes known, misleadingly, as notarial execution. The procedure is set
out in s 9 and Sched 3.
A blind person is entitled to sign on his own (s 9(7)).
What is the difference between the power of attorney method and section 9 for having someone else sign for you?
The difference between the power of attorney method and section 9 is that under section 9 persons do not need to appoint someone; a person is appointed by the law to sign for that person.
Under which section are the methods of signing?
Three methods in provisions (s 7(2)(a)(b) and (c))
What are the three possible ways of signing a document under s.7(2)?
(i) Standard method. Surname + forename (or initial or abbreviation or familiar form of forename). So James Andrew Graham or J A Graham or J Graham or A Graham or Jas Graham or Jimmy Graham. Note that flexibility applies only to the forename.
Examples: ⁃ James Andrew Graham ⁃ J A Graham ⁃ J Graham ⁃ A Graham ⁃ Jas Graham ⁃ Jimmy Graham ⁃ All of these examples would be compliant with [B].
(ii) Informal method. Any other name or description or initial or mark. So James or Graham or Jimmy or J or Dad or Grandpa. But note (a) must satisfy either (i) or (ii) of s 7(2)(c), and (b) cannot be used for probative (ie s 3) deeds.
James ⁃ JG ⁃ J ⁃ Dad
(iii) Longstop method. The full name by which granter is identified in deed.
Most signatures will conform to paragraph (B) - standard method.
Which signatures can not be used for section 3 deeds (for the deed to be probative)?
(ii) Informal method. Any other name or description or initial or mark. So James or Graham or Jimmy or J or Dad or Grandpa. But note (a) must satisfy either (i) or (ii) of s 7(2)(c), and (b) cannot be used for probative (ie s 3) deeds.
James ⁃ JG ⁃ J ⁃ Dad
How do juristic persons sign?
Although a juristic person is a ‘person’ legally speaking, a juristic person cannot hold a pen, therefore somebody has to sign on behalf of the juristic person.
Special provision is made in 1995 Act Schedule 2 : NB this is a very important part of the act and is the only schedule we need to know). Schedule 2 goes through different types of juristic person and there is a separate paragraph for each of the main types of juristic person. ***THEY ARE ALL VERY IMPORTANT AND MUST BE LEARNED:
What does schedule 2 of the 1995 Act say?
(i) Partnerships (para 2(1),(2)).
⁃ Signature of partner or of authorised person. May use either own name or firm name. So Dorothy Murray or Dundas & Wilson.
(ii) Companies (para 3(1)).
⁃ Signature of director or secretary or authorised person.
(iii) Limited liability partnerships (para 3A(1)).
⁃ Signature of member of the LLP.
(iv) Local authorities (para 4(1)).
⁃ Signature of proper officer of the authority.
(v) Other bodies corporate (para 5(1),(2)).
⁃ Signature of member of governing body or secretary or authorised person. This is a wide category which includes building societies, trade unions, universities, foreign companies.
⁃ This paragraph applies to companies which are not British since paragraph 3 applies only to British companies.
What is the main purpose of ensuring a document is probative?
It must be probative in order to be registered.
What does probative mean?
Probative means presumed to be validly executed. Of course, there is a difference between a deed being validly executed and a presumption that a deed is validly executed. Nevertheless this legal presumption is very valuable.
It is valuable because if the authenticity of a deed or document is disputed, then the presumption determines where the onus of proof rests.
When is a deed probative?
A deed which is merely subscribed under s 2 is valid but improbative. To make a deed probative by attestation, under s 3, it is necessary to comply with 5 different requirements.
- Normally under s 3 probativity is achieved by attestation (i.e. witnessing).
Step 1
◦ Step one is exactly the same as under s 2: the granter subscribes the deed (s 3(1)(a)), but only by methods (i) (standard) or (iii) (longstop) (see above).
◦ Immediately he does so the deed is formally valid under s 2. The only purpose of doing anything more is to make the deed probative.
⁃ NB. In addition, for the purposes of probativity, a will (“testamentary document”) must be signed (NB not subscribed) on every sheet (s 3(2)). In practice wills are usually signed on every page due to concerns over ‘substitution’ of sheets. Also, in terms of sheets, signing is only necessary on each sheet, even if both sides are used.
Step 2
A witness is to hand. There are certain rules concerning who can be a witness. Positively, the witness must:
⁃ (i) be 16 or over
⁃ (ii) be of normal mental capacity
⁃ (iii) “know” the granter (this is a sort of identity check) (s 3(4)(c)). For (iii) see s 3(5).
Negatively, in the case where a deed is signed by more than one persons, the witness must not be another granter (s 3(4)(b))
Step 3
The granter must either sign in the witness’s presence (i.e. the witness watched him sign), or (having signed earlier) he must acknowledge his signature to the witness (s 3(7)) - this would normally be done by saying something like “that’s my signature” while pointing to it on the deed.
The law states that if the signature is acknowledged, this in principle can be ‘non-verbal’.
Step 4
• The witness must signs (NB not subscribes) to indicate that they witnessed the event.
• [The convention is that the grantors of the deed sign at the foot of the righthand side while the witnesses sign at the foot of the left hand side.]
• He may sign either by method (i) (standard) or method (iii) (longstop) above (s 7(5)).
• The same person may witness the signatures of more than one granter, and in that case need only sign once (s 7(5)).
• The signature must be “one continous process” with the event witnessed (ie either subscription or acknowledgement). This means that the witness must sign at the same time as witnessing the signature of the granter. The law will not allow a significant delay in the witness signing (due to fear that if the witness doesn’t sign immediately then the deed they may come to sign could be a different deed from the one they believed it to be).
⁃ See eg Thomson v Clarkson’s Trs (1892) 20 R 59:
⁃ Law clerks acting as witnesses went to someone’s house and saw a person sign. Rather than signing at the time, the law clerks took the deed back to the office and signed in the office (45 mins later).
⁃ This was held to be valid, partly because they were law clerks and partly because the deed was never out of their sight.
Step 5
⁃ The witness must be designed in the deed or in the testing clause (s 3(1)(b)&(4)(f)). (The testing clause is a special clause added at the end of a deed which gives details of the attestation of the witness).
⁃ As to when this must be done, see s 3(3):
⁃ (a) “The name and address of a witness may be added at any time before the document is:
⁃ (i) founded on in legal proceedings; or
⁃ (ii) registered for preservation in the books of Council and Session or in sheriff court books
⁃ (b) The name and address of a witness need not be written by the witness himself.
⁃ A witness is designed by name (not necessarily full name) and by address. In practice the testing clause invariably gives the place and date of execution, although neither is required. However under s 3(8)(b) where the document bears to state the date or place of subscription, there shall be a presumption that
⁃ The testing clause is (usually) added/completed after execution, although often it is pre-printed with blanks for the date and place of execution and the name and address or the witness. Hence the testing clause is not part of the deed itself.
How do you know when a deed is probative?
⁃ Since probativity is all about presumptions, the test for whether a deed is probative is simply whether it appears to have been validly attested (or equivalent). [This means that if a deed looks okay, then it is presumed to be valid, even if in actual fact it is invalid.]
[[See s 3(1):
⁃ Subject to subsections (2) to (7) below, where-
⁃ (a) a document bears to have been subscribed by the granter of it;
⁃ (b) the document bears to have been signed by a person as a witness of that granter’s subscription and the document, or the testing clause or its equivalent, bears to state the name and address of the witness; and
⁃ Nothing in the document, or in the testing clause or its equivalent indicates-
⁃ (i) that it was not subscribed by that granter as it bears to have been so subscribed; or
⁃ (ii) that it was not validly witnessed for any reason specified in paragraphs (a) to (e) of subsection (4) below
⁃ the document shall be presumed to have been subscribed by that granter.]]
