Execution of Documents

Question 1

ROWA 1995

Answer 1

Requirements of Writing (Scot) Act 1995

Question 2

What are the 4 parts of the ROWA 1995?

Answer 2

Part 1 (s 1) When writing is required
Part 2 (ss 1A-9) Traditional documents
Part 3 (ss 9A-9G) Electronic documents
Part 4 (ss 10-15) General provisions

Question 3

When is formal writing required? (in reference to property law)

Answer 3

s1 (2)
(C) - Creation, transfer, variation or extinction of real rights in LAND (s 1(2(b))
(D) Contract of promise for (C) (s 1(2)(a)(i))
(E) Gratuitous promise, except in the course of business (s 1(2)(a)(ii)).

Question 4

What kind of writing is required?

Answer 4

s 1(2)

a traditional document complying with s 2 or an electronic document complying with s 9B

Question 5

What happens when writing is not provided when required?

Answer 5

the purported right is void

Question 6

What is a traditional document?

Answer 6

A document written on paper or some other tangible
surface. Under ROWA 1995 part 2 they need to be
signed at the end by the person granting the document.

Question 7

What is an electronic document?

Answer 7

A document created in electronic form. Under ROWA
1995 part 3 there needs to be an electronic signature by the person granting the document.

Question 8

What does it mean to subscribe a document?

Answer 8

Sign it at the end

Question 9

Where can you find what methods to sign?

Answer 9

ROWA 1995 s 7(2)

Question 10

Is an illegible signature valid? What is the authority on this?

Answer 10

An illegible signature is valid but not probative.
Stirling Stuart v Stirling Crawfurd’s Trs (1885)

Question 11

Do the person executing and the granter need to be in the same place?

Answer 11

no. s 10A ROWA 1995

Question 12

What does probative mean?

Answer 12

presumed to be validly executed.

A sues B on the basis of a probative document A need not prove that the document was validly executed.

Question 13

What makes a document formally valid?

Answer 13

If it is subscribed according to s 2 ROWA 1995

Question 14

How do you upgrade a document from formally valid to probative?

Answer 14

have the granter’s subscription witnessed. (attestation)

Question 15

During attestation what conditions must the witness meet?

Answer 15

ROWA 1995 s 3 (4)(c)
must be over 16, of normal mental capacity and they cannot know the granter, they can also not be another granter (s 3 (4) (b))

Question 16

What are the steps for executing a probative document?

Answer 16

The granter subscribes usually (s 2) and a witness that meets to conditions is present as the granter signs or the granter acknowledges the signature to the witness.

The witness must sign (not subscribe) immediately after acknowledgment. The witness is added to testing clause by stating their name and address.

Question 17

When a witness is designed in the testing clause what to they have to state?

Answer 17

Their name (doesn’t have to be full) and address

Question 18

what does it mean for a signature to be ‘one continuous process’ during attestation?

Answer 18

The witness’s signature must follow the event witnessed (ie either subscription or acknowledgement) immediately.

Question 19

During attestation, how can acknowledgement be done?

Answer 19

Acknowledgement can be done through words i.e “This is my signature” or actions

Question 20

How to know when a document is probative?

Answer 20

A document is considered probative if it looks to be validly attested (or equivalent)

Question 21

How can the validity of a document’s execution be attacked?

Answer 21

s 3(4)
Direct attack - showing evidence that the granter did not subscribe

Indirect - evidence showing attestation (or equivalent) was not properly carried out

Question 22

How can a local authority achieve probativity ?

Answer 22

attestation or
sealing of the document with official seal by a person of authority on the day of subscription
sch 2 para 4(5)

Question 23

How can a company make a document probative?

Answer 23

attestation or
having the document subscribed by a second signatory that meets the requirements.
sch 2 para 3(5)

Question 24

How can an LLP make a document probative?

Answer 24

having it subscribed by 2 members of the LLP
sch 2 para 3A (5)

Question 25

Why might want to make a document probative?

Answer 25

If the document is long-lasting and subscription must be proved

only probative documents
can be registered in the Land Register, Register of Sasines s6

Question 25

Why might want to make a document probative?

Answer 25

If the document is long-lasting and subscription must be proved

only probative documents
can be registered in the Land Register, Register of Sasines s6

Question 26

What makes an electronic document formally valid?

Answer 26

valid if it is authenticated by granter by being signed through an ‘advanced electronic signature’

Question 27

What makes an electronic document probative?

Answer 27

probative if it has been certified by means of a statement, incorporated into the document, that the
signature is a valid means of establishing the document’s authenticity.

certification is provided, not by the parties, but by a qualified ‘trust service provider (Law Soc of Scot)

Question 28

How can documents with multiple signatories be executed?

Answer 28

ten people execute ten separate versions (‘counterparts’) of the
same document (s 1(2)). the counterparts are delivered
either to each signatory or – to a person nominated to take delivery, then they are collated

Question 29

How to turn a improbative document probative?

Answer 29

The granter who is available was acknowledge the signature to a witness who then signs or

an application is made to the sheriff court under s 4 to
have the document endorsed with a certificate stating that it was subscribed by the granter.

Question 30

How can annexation be incorporated into documents?

Answer 30

s 8 if it is
(a) referred to in the document; and
(b) identified on its face as being the annexation referred to

Question 31

How can an alteration be treated as part of the document?

Answer 31

If it is made before subscription

Question 32

How can one prove an alteration was made before subscription?

Answer 32

give (oral) evidence it was made before subscription

for s 3 documents it is stated in the testing clause
(or document) that the alteration was made before subscription

Question 33

What are bilateral documents?

Answer 33

Documents that are granted and signed by all the parties involved

e.g contracts

Question 34

What are unilateral documents?

Answer 34

Documents signed and granted by one person. They must be delivered to the grantee

e.g dispositions, standard securities

Question 35

How are documents to be delivered?

Answer 35

a traditional deed by handing it to the grantee (or agent), whether personally, by post, or by some other means or by electronic delivery of a copy (e.g email attachment)