Examination of title
3.31.3 Execution
The execution of an attested writing is achieved as follows:
3.32 Alterations to attested writings
Alterations (sometimes called vitiations) are defined as including interlineations, marginal additions, deletions, substitutions, erasures or anything written on an erasure. The definition is wide enough to include anything added to a deed after it has been typed, except for additions in spaces deliberately left blank for that purpose. A fundamental distinction is drawn between alterations made before subscription and alterations made afterwards.
3.33 Alterations made before subscription
The Act provides that an alteration made before subscription shall form part of the document as so subscribed. Hence it is legally effective. In practice, it may not be clear whether an alteration was made before or after subscription, hence the Act also provides that if the alteration is declared in the testing clause in terms which state that the alteration was made before the document was subscribed, the presumption arises that such was the case.
3.34 Alterations made after subscription
Such alterations do not form part of the writing unless they are ‘rescued’ by being signed afresh by the granter and (if the alteration is to be not just valid but also self-evidencing) a witness.
None of the above applies to writings subscribed but not witnessed. Since such writings are not self-evidencing but have to be proved, it follows that any alteration to such a writing would have to be proved at the same time. There are special provisions for wills/testamentary writings.
3.35 Schedules and annexations in general
Provision is made in section 8 of the 1995 Act for authentication of schedules, plans and other annexations. The provisions apply equally to attested documents and documents which are merely subscribed by the granter. An important distinction is made between (1) ‘ordinary’ annexations and (2) plans and other forms of description attached to documents relating to land.
3.35.1 Ordinary annexations
The basic rule for schedules, inventories and other annexations applies whether or not a document relates to land. It is that an annexation to a document is to be regarded as incorporated in the document if it is:
Specifically, the annexation does not have to be signed or subscribed. The basic rule means that the deed itself must refer to and incorporate, for example, the schedule etc. with words such as ‘the schedule annexed as relative hereto’. In addition, the schedule itself must be ‘identified on its face as being the annexation referred to in the document’. In other words there is cross-referencing.
Whether an annexation is regulated by section 8(1) or 8(2), terms such as ‘Schedule’ or ‘Schedule referred to in the foregoing Standard Security’ are insufficient to identify the annexation as the annexation referred to in the document. Subject to the following paragraphs, any deed which relies solely on these terms to identify the annexation should be rejected when submitted for recording in the Sasine Register or returned for amendment when submitted in the Land Register.
There are various ways of ensuring that the annexation is adequately identified on its face but the obvious and safest way will be the traditional form of docket identifying the names of the parties to the deed, e.g. ‘This is the schedule referred to in the foregoing Standard Security by A in favour of B dated……’. Dockets may however take various forms, and the single essential is that they identify the particular annexation as the annexation referred to in the particular deed. If a docket is inadequate in its terms there may nevertheless be sufficient identification on the face of the annexation if the information in the docket is supplemented by other facts on the face of the annexation such as an address.
In the absence of a docket, the Keeper will accept that an annexation has been sufficiently identified, if there is some other form of identification which is not contradicted in any way. Examples of acceptable identification are:
Hence a plan may be identified on its face as a plan of the property described in the document because, for example, the street name and individual house number are shown. Here the plan must still be signed as per section 8(2)(c)(i) but the want of a docket is made good by the identification in the plan. (This does not alter the fact that the plan requires to be signed).
The foregoing examples are not comprehensive. Doubtful cases should be referred to the registration officer's referral point, who will liase with a senior caseworker and Legal Services as necessary.
The Schedule need not be physically attached to the deed and it need not be signed. If, however, the deed itself refers to a signed schedule, e.g. ‘the Schedule annexed and signed as relative hereto’ the schedule must be signed. Failure to sign in that situation could mean that the schedule has not been properly identified within the terms of the Act.
3.35.2 Plans and other descriptive schedules annexed to documents relating to land
The rules referred to previously also apply to plans and any annexation which describes land. In addition, the plan or descriptive annexation requires to be signed by the granter.
In the case of a plan, drawing, photograph or other representation of the subjects every page requires to be signed.
In other instances where the annexation is an inventory, appendix, schedule or other writing that describes or shows all or any part of the land to which the document relates it is only the last page that has to be signed.
In cases where the annexation consists partly of pages of text and partly of plans, drawings, photographs or other representations of the subjects it is sufficient if it is signed on the last page and the pages which consist of or contain the plans, drawings etc. The signature on the last page will cover the pages of text.
Since it is signing and not subscription which is required, the granter or granters can sign anywhere on the plan or page. If there are numerous granters and there is insufficient space to sign, the same rules apply to signing on an extra page as apply to writings in general. For the avoidance of doubt, the signing need not be witnessed.
3.36 Execution by means of adhesive labels
The Keeper’s policy in relation to signatures on adhesive labels remains unchanged by the 1995 Act in that they are wholly unacceptable. A signature written on a piece of paper or a label and stuck onto a plan or other annexation is contrary to section 8 (2) of the 1995 Act. This section clearly indicates the need to sign the annexation itself.
It is not uncommon to find a docket has been affixed to an annexation of a deed but again this is equally unacceptable. The 1995 Act clearly states that an annexation must be identified ‘on its face’. The Keeper’s interpretation of this is that it must be on the physical surfaceof the deed. No label, however well it is fixed, could be considered part of the annexation. A label could be removed or replaced, or even overlaid with another label.
It follows that writings and signatures on adhesive labels are to be disregarded as ineffectual. However, the use of an adhesive label for a docket will not automatically make a deed unacceptable for recording or registration because there may be other identification on the face of the annexation, which is sufficient to permit its acceptance.
3.37 Signature on an erasure
This is acceptable but not desirable.
3.38 Testing Clause
The purpose of a testing clause is to record particulars of execution, but its secondary purpose is to mention any alterations, interlineations or erasures which have been made prior to signature (see Alterations made before subscription). The testing clause is part of the deed but it cannot alter or add to the deed itself. The whole of the testing clause must appear above the granter’s signatures. If there is an error in the testing clause that may be fatal, the testing clause can be started again. Normally the second testing clause will commence ‘that is to say’ and then the corrected testing clause will be narrated.
Section 10 of the 1995 Act empowers the Secretary of State to make regulations providing for a recommended form of testing clause. It is not clear whether the power will ever be exercised. In any case, the traditional form of testing clause can continue to be used, as well as any variant which meets the basic requirements. The following is a typical example of testing clause:
This disposition consisting of this and the three preceding pages and the inventory annexed and signed as relative hereto is signed and witnessed as shown below -
Signature of witness signature of [first] granter
Name of witness
Address of witness Date Place
Since the 1995 Act, the traditional form of testing clause is now acceptable for notarial execution.
3.39 'Notarial' execution- granter blind or unable to write
Notarial execution is available to ‘any person who, from any cause whether permanent or temporary’ is blind or unable to write. Notarial execution cures physical incapacity and is not a solution for someone who cannot write as a result of any mental incapacity. It should be noted that it is valid for a blind person to sign the deed themselves without the use of a notary.
Notarial execution was introduced by the Subscription of Deeds Act 1540, amended in 1579 and 1681 and then superseded by the Conveyancing (Scotland) Act 1874. The 1874 Act was replaced by the Conveyancing (Scotland) Act 1924. The 1995 Act repealed section 18 of the 1924 Act and the new set of rules for notarial execution can be found in section 9 and Schedule 3 of the1995 Act.
Although the 1995 Act uses the term ‘relevant person’ instead of the more traditional ‘notary’ it will be convenient to continue to use the latter term. For the purposes of notarial execution, a notary is not (or not merely) a notary public but one of the class of persons entitled to execute documents on behalf of persons who are blind or unable to write. These persons are practising solicitors, advocates, JPs and sheriff clerks. Parish ministers acting in their own parish can no longer act as notaries. Outwith Scotland, notaries public and other persons authorised under the law of the place of execution can validly notarise a writing.
As previously mentioned in the immediately preceding paragraph, a standard testing clause has now replaced the traditional notarial docquet. The clause will disclose that the notary (name and address given) is signing on behalf of the granter who has declared that they are blind [or unable to write]. In addition, the clause must state either that the document has been read over to the granter by the notary, or that the granter has declared that he does not wish the document to be read over to him. Prior to the 1995 Act, the whole deed needed to be read out word for word to the granter. This has now been dispensed with. It has been acknowledged that just because a person cannot write it does not follow that they cannot read. However, the 1995 act also allows for someone who cannot read to dispense with the reading aloud of the document if they so wish.
3.39.1 Example of notarial execution where the deed has been read over to the granter
This xxxx has been read over to the said AB by me XY, solicitor, (address) and is signed by me for and with the authority of, and in the presence of, the said AB who has declared that he is blind [or unable to write], and witnessed as shown below –
Signature of witness Signature on behalf of granter
Name of witness
Address of witness Date Place