Execution of Docs

• Why is probativity important? Evidential presumption of validity - shifts the burden of proof onto the other party eg. to prove forgery or improper witnessing of a document
• Describe the purpose of counterpart signing and how it works Allows signature in separate locations + put together to make a single document; useful for commercial parties eg. in banking
• How is validity determined? s.7(1) RoW - subscription by granter = signature at the end of the last page of a document (after the final clause, before the Schedule/annexations)
• What is the 'standard method' of signing? last name and a forename (or initial or abbreviation/familiar form) — RoW(S)A 1995, s.7(2)(b)
• What is the 'longstop method' of signing? Full name as identified in the document - RoW(S)A 1995, s.7(2)(a)
• For what purpose might someone use the 'informal method' of signing? What are the legal problems with this? Informal wills eg. diary, note; Cannot be made probative
• What type of trust falls into the RoW categories? Why? Truster-as-trustee trusts: when a truster appoints themselves as their sole trustee; to protect creditors
• Why is legibility important in probative documents? Appearance is a crucial aspect of probativity - s.3(1)(a) - 'bear' to have been subscribed by the granter
• Example of a 'contract for unilateral obligation for creation, transfer, variation, or extinction of a real right in land' Missives (agreement for the transfer of a real right of ownership in land in return for payment); agreement by landlord to lease land to a prospective tenant - writing not needed if real riht to which the personal right relates is a lease of one year or less - RoW(S)A 1995, s.1(7)
• What are the six categories which require writing? 1) Contract for unilateral obligation for creation, transfer, variation, or extinction of a real right in land 2) Creation, transfer, variation, or extinction of a real right in land 3) Wills, testamentary trust dispositions and settlements, and codicils 4) Gratuitous unilateral obligations, except in the course of a business 5) Truster-as-trustee trusts 6) Agreement under s.66(1) of the Land Registration etc (Scotland) Act 2012
• Example of 'creation of a real right in land' (2) 'Deed of constitution' - lease, standard security
• Example of 'transfer of a real right' (2) 'deed of transmission' - disposition, assignation
• Example of 'variation of a real right in land' 'Deeds of variation' - after the real right has been granted, 'minute of waiver'
• Example of 'extinction of a real right in land' 'Deeds of extinction' - renunciation of a lease or discharge of a standard security
• Does the constitution of a trust in relation to land require writing? No - beneficiary in a trust does not acquire a real right upon constitution; Although they will acquire a real right (Chemcem Scotland Ltd v Beaton [2018] SC FAL 32, 2018 SLT (Sh Ct) 371)
• What is the basic rule upon failure to use writing for a required category? Purported transaction is void eg. oral agreement to buy land is unenforceable
• What are the reasons for requiring writing? Provides evidence, Facilitates registration, Reduction of fraud risk, Communicates seriousness of transaction
• Where a contract has been constituted by separate offer and acceptance documents, what are the rules for formal validity? RoW(S)A 1995, s.2(2) - both must be subscribed by the granter to be valid; can also be subscribed in counterpart
• T or F: Signatures do not have to be legible to be valid T: Illegibility does not affect whether or not a document is valid (Stirling Stuart v Stirling Crawfurd's Trs (1885) 12 R 660); However, a signature cannot be probative if it is not legible
• How is power of attorney important in execution of documents? RoW(S)A 1995, s.12(2) - subscription can be carried out by someone who has been granted power of attorney. The power to sign on behalf of a granter does not have to be constituted in writing; In practice, is often created by probative deed
• Requirements for valid witnessing not forged (RoW(S)A 1995, s.3(4)(a)) a granter cannot be witness (RoW(S)A 1995, s.3(4)(b)) witness must know granter, be 16, be mentally capable of acting (RoW(S)A 1995, s.3(4)(c)); ‘know’ = ‘credible info’ as to identity of granter (RoW(S)A 1995, s.3(5)) — can be acquaintances rather than close friends must have actually witnessed granter’s subscription (RoW(S)A 1995, s.3(4)(d)); either be there or have subscription acknowledged at later time (Lindsay v Milne 1995 SLT 487) must sign after granter has signed/acknowledged → must be ‘one continuous process
• To be executed in counterpart, a document must be (a) executed in two or more duplicate, interchangeable, parts, and (b) no part is subscribed by both or all parties
• Upon execution in counterpart, what will the effect of this be? (3) It will be treated as a single document
• A single document comprised of counterparts can be done through what two options? (a) both or all the counterparts in their entirety, or (b) one of the counterparts in its entirety, collated with the page or pages on which the other counterpart has, or other counterparts have, been subscribed
• When does the effect of a counterpart document take place? LW (5) When all counterparts have been delivered
• T or F: counterpart signing is only available for e-documents F: It is typically used in practice for traditional documents Counterpart signing can be done by traditional or e-document (LW s.3)
• In order to be validly executed, a document must be subscribed by the granter at the final page of the document - RoW(S)A 1995, s.2(1) + by recognised way eg. standard/longstop method
• s.3 requirements for probativity include: (a) appears to have been subscribed by the granter (b) witness signs + provides name and address (c) no indication that it has been improperly witnessed
• If a witness has forgotten to provide their name and address, this can later be made probative if they are added later
• A delay in signing will not affect probativity unless -> narrated within the document; apparent by visual inspection