documents and execution Flashcards
meaning of doc
deed creation, transfer, variation or extinction of real rights examples = stand sec
ROWA 1995 1A AND 9A
divides written doc into electronic and traditional doc
execution
simply means the signature valid by law.
ROWA background
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
when is formal writing required
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
4 reasons why writing is necessary
- to impress upon the parties of the seriousness of the situation.
- to reduce fraud
- to provide evidence of juridical act
- to allow reg on land reg
what kind of writing is needed
defined s.1(2) Must be EITHER a traditional doc s.2 OR a an ELECTRONIC doc that complies with s.9B
what happens if formal writing is not used when it is required?
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)
what is needed for a TRADITIONAL doc to be valid
s.2(1) ROWA defines
subscription by the person granting the doc
s.2(2) rowas contracts offer and acceptance MUST BE subscribed
s.7 rowa
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)
categories of juristic person
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
stirling stuart v stirling Crawford trs
signatures do not need to be legigible
illegible signature is valid it is NOT probative
S.12(2) ROWA
person can appoint power of attorney to execute doc on their behalf
s.9 sch 3
if a person is blind a document can be executed on their behalf by sol or adv or justice of peace
probativity
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
s.3(1)a rowa
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
s.3(2) ROWA
wills and testamentary doc must be signed on every pg
s.3(4) ROWA
witness +vely must be over 16
capax
know the granter
-velythe witness cannot be another granter
s.3(7) ROWA
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
s.7(5) ROWA
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
THE TESTING CLAUSE
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
when is a doc probative
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
three separate presumptions
- prob doc = presumed subscribed by granter thus valid s.2 (s.3(1))
- prob doc = presumed to have been subscribed b the date stated in testing clause s.3(8)
- 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
attacking the doc
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
ATTESTATION
Only method of gaining prob in cases where the granter is a natural person or PARTNERSHIP apart from recourse s.4
schedule 2 s.4(5) and 5(5)
Probativity local authorities and bodies corp. sealing a doc with company seal must be done with someone who is authorised
schedule 2 s.3 (5)
Probativity UK companies doc signed by 2nd signatory 2 directors/ director and sec/ 2 authorised person cCategories CANNOT BE MIXED!!
schedule 2 s.3 A(5)
LLPs 2 memebers of LLP
s.2 or s.3 ?
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
converting improbative doc into probative 2 possibilties
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)
s.8 rowa
ANNEXATION
s.12(1)
annexation and alterations are defined
comes after sub
s.5
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
traditional doc execution in counter part
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
part 3 1995 act
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
bilateral v unilateral
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.
creditors of sir james stamfield v the children of scot bristo
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
