3.36.2 Example of notarial execution where the granter does not wish the deed read over
This xxxx is signed by me XY, solicitor, (address) 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 that he does not wish the XXX read over to him/her and witnessed as shown below –
Signature of witness Signature on behalf of granter
Name of witness
Address of witness Date Place
The pre and post 1995 rules for notarial subscription can be summarised as follows:
| PRE 1995 | POST 1995 |
| Notary and witnesses must sign all together in the granter’s presence | For a self evidencing deed, 1 witness is required, but witnesses are not essential for notarial execution per se |
| The deed must be read over verbatim to the granter | The granter is entitled to dispense with the reading aloud of the deed |
| Docquet as specified in the 1924 Act required, and must be handwritten by the notary | Details narrated in standard testing clause - no docquet required |
| Notary should not gain from the deed or the whole deed is invalid | If the Notary does gain from deed only that part of the deed is invalid |
| Granter must declare how they are incapacitated, and give authorisation to the notary. The witness must see or hear the authority being given. | Person need only declare they are blind or unable to write |
| The notary must sign on the last page below the docquet | No docquet required |
| The witnesses must sign immediately after the notary on the last page. (Testing clause is in the normal form as if the granter had signed themselves) | Standard testing clause which will now incorporate the notary’s designation etc. |
| Testamentary deeds - the notary must sign on every page, and on the last page below the docquet | Testamentary deeds – the notary must sign on every page |
3.37 Subscription by companies and other juristic persons
Company is defined in section 12(1) of the 1995 Act by reference to definition contained in the Companies Act in force at the appropriate date. Prior to 1 Oct. 2009 this was section 735(1) of the Companies Act 1985 (‘a company formed and registered under the Companies Acts’); from 1 October 2009 by incorporating section 1(1) of the Companies Act 2006 (‘a company formed and registered under this Act’). This does not include foreign companies which are discussed in Foreign companies.
Special rules are provided by section 7(7) and schedule 2 of the 1995 Act for subscription by companies and other forms of legal personae recognised by the law as having the capacity to transact with interests in land in their own right. Deeds executed by companies prior to 31 July 1990 required to:
These rules were amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 section 72, as amended. The most recent provisions for execution by companies are provided by paragraph 3 of Schedule 2 of the 1995 Act. These provisions are introduced by an alternative version of parts of section 3 (self-evidencing deeds) specifically for companies. In particular there are alternative versions of sub-sections 3(1) and 3(1A).
Self evidencing is provided for by section 3(1) which provides that a document shall be presumed to have been subscribed by the company where:
3.38 Companies double signatory method
The alternative section 3(1A) provides that it remains competent for companies to execute documents (and have the benefit of the presumption of authenticity) by double signature. This sub-section provides that a document shall be presumed to have been subscribed by the company if it bears to have been subscribed on behalf of the company by:
There can be no mixing of categories, so it must be either two directors; a director and secretary; or two authorised persons who sign. It is not permissible to have, for example, a director and an authorised person or any other permutation from the categories described above. There is no requirement that the second signatory sign immediately after the first.
From 1 August 1995, foreign companies will require to execute documents in accordance with the provisions contained in paragraph 5 of schedule 2 of the 1995 Act. This provides that the document shall be presumed to have been subscribed by a member, secretary or authorised person and by the body where a document bears to have been subscribed on behalf of a body corporate by
(b) the secretary of the body; or
(c) a person bearing to have been authorised to subscribe the document on its behalf;
and
and there is nothing in the document or testing clause or equivalent indicating that:
(b) that it was not validly witnessed for any of
the following reasons:
(a) a signature bearing to be the signature of the witness is not such a
signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years,
or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's
acknowledgement of his subscription and the signature of the witness were
not one continuous process.or
(h) if the document does not bear to have been witnessed, but bears to have been sealed with the common seal of the body, that it was sealed by a person without authority to do so or was not sealed on the date on which it was subscribed on behalf of the body.
Who can sign and how they sign are the two points a registration officer must consider. Section 5 of Schedule 2 of the 1995 Act set out the statutory requirements in the 1995 Act.
An authorised person is someone who has an implied authorisation and it may be universal or it may be specific to a particular deed. The authorisation need not be in writing, e.g. a qualified assistant could sign missives on behalf of a law firm.
To establish a self evidencing document, a witness must sign the document. It is presumed that the signatory for the firm is authorised and the witness need not verify this position.
Registration officers should bear in mind that this paragraph relates only to documents which run in the name of the partnership itself. For deeds to which trustees of the firm are parties, signature by all the trustees in the presence of a witness (or by each of the trustees separately in the presence of their respective witnesses) is required.
3.40.1
Limited Liability Partnerships
The Limited Liability Partnerships (Scotland) Regulations 2001 amended the terms
of the 1995 Act to set out that where the granter of a document is a limited
liability partnership the document is validly subscribed if it is signed on
behalf of the partnership by one of the members. To establish a self evidencing
document, the Regulations provide that a document shall be presumed to have
been subscribed by the limited liability partnership where:
1. that it was not subscribed on behalf of the limited liability partnership as it bears to have been so subscribed; or
2. that it was not validly witnessed for any of the following reasons:
(a) a signature bearing
to be the signature of the witness is not such a signature, whether by reason
of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years,
or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the
granter's acknowledgement of his subscription and the signature of the witness
were not one continuous process.
If the signature has not been witnessed, a document shall also be validly executed if it bears to have been subscribed by two members of the partnership.
Registration officers should bear in mind that this paragraph relates only to documents which run in the name of the partnership itself. For deeds to which trustees of the firm are parties, signature by all the trustees in the presence of a witness (or by each of the trustees separately in the presence of their respective witnesses) is required.
The 1995 Act repeals sections 194(1), 194(1A) and 194(1B) of the Local Government (Scotland) Act 1973 and makes its own provisions for documents signed on behalf of local authorities. These are to be found in section 3 and schedule 1, read in conjunction with schedule 2, paragraphs 1 and 4. Under the new rules a document is presumed to have been subscribed by the proper officer of a local authority and by the authority itself if the document bears to have been subscribed on behalf of the local authority by the proper officer of the authority and the document bears:
(b) (if the subscription is not so witnessed), to have been sealed with the common seal of the authority; and
nothing in the document, or in the testing clause or its equivalent, indicates:
(b) that it was not validly witnessed for any of
the following reasons:
(a) a signature bearing to be the signature of the witness is not such a
signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years,
or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's
acknowledgement of his subscription and the signature of the witness were
not one continuous process.or
(h) if the document does not bear to have been witnessed, but bears to have been sealed with the common seal of the body, that it was sealed by a person without authority to do so or was not sealed on the date on which it was subscribed on behalf of the body.
For the avoidance of doubt the provisions of section 193 of the Local Government (Scotland) Act 1973 (relating to authentication of notices, orders etc.) remains in force. Charging orders in particular are governed by section 194 of the Local Government (Scotland) Act 1973.
3.42 Improvement/Repairs Grants Subscription
The Keeper has, from time
to time, received Notices of Payment of Improvement Grant or Repair Grant that
have been executed by means of a facsimile signature. Previous guidance has
been that the execution of certain Local Authority documents by means of a facsimile
signature was permitted. However, this facility was repealed by schedule 14
of the Local Government (Scotland) Act 1994.
Therefore, deeds executed with any form of facsimile signature are invalidly
executed and should be returned to the submitting agent. For the avoidance of
doubt, such Notices require to be witnessed or sealed in compliance with the
requirements of Section 6 and schedule 2 of the Requirements of Writing (Scotland)
Act 1995."
A document granted by one of the bodies affected by paragraph 5 is formally valid if it bears to have been signed on its behalf by:
For the document to be not merely valid but self-evidencing it must either be attested by a single witness or be sealed by a person having authority to do so. Compliance with the above formalities does not raise any presumption that the signatory was who he or she is supposed to be or was authorised to sign, or that the seal was affixed by a person authorised to do so. A party transacting with the body therefore has to make due enquiry. In the Land Register, the Keeper will rely upon the certification on the application form unless, exceptionally, he is alerted by some aspect of the application or deed to the possibility that the deed is not properly authenticated.
3.44 Ministers of the Crown and office-holders
As might be expected, formal validity is achieved by the subscription of the granter or an authorised signatory. It is presumed that such a signatory is in fact authorised, and that presumption is in contrast to the lack of such a presumption in the case of, e.g. companies. Self-evidencing status is achieved by the attestation of a single witness. With effect from 1 July 1999 those functions previously exercisable by Ministers of the Crown (including but not confined to the Secretary of State for Scotland) which come within the remit of the Scottish Parliament’s powers and responsibilities will, by virtue of section 53 of the Scotland Act 1998 (hereinafter referred to as ‘the Scotland Act’), be transferred to and thereafter be carried out by the Scottish Ministers.
3.45 Execution under the Scotland Act
Deeds executed on or after 1 July 1999 relating to a function which has transferred to Scottish Ministers will, by virtue of Section 59(1) of the Scotland Act, either be granted by or be in favour of ‘Scottish Ministers’. For the avoidance of doubt the term ‘Scottish Ministers’ is what will appear in deeds. Subsection (4) of that section further provides that a deed shall be validly executed by the Scottish Ministers if it is executed by any member of the Scottish Executive. The Scottish Executive comprises the First Minister, those Ministers subsequently appointed by the First Minister, the Lord Advocate and the Solicitor General for Scotland.
It will not be competent for deeds executed before 1 July 1999 to be either in favour of or be granted by Scottish Ministers. Up until that date all deeds had to be granted by or be in favour of a Minister of the Crown. The only exception is if the deeds were in favour of the Lord Advocate (section 62) or ‘The Scottish Parliamentary Body’ (section 21).
It is also competent for deeds to be executed under the delegated authority of the aforementioned members of the Scottish Executive.
Wills are treated slightly differently by the 1995 Act. Wills like all other deeds may be subscribed under section 2 and attested under section 3 of the 1995 Act. Wills have an additional requirement they must be signed on every sheet by the granter as per section 3(2). A single sheet of paper, which is folded into four pages, need only be signed once and countersigned by one witness. The witness is not required to witness each page and indeed the granter can sign the additional pages at any time before or after the witnessing of the last page.
It is preferable to sign on every page. Wills are often registered in the Books of Council and Session and when an extract of a four page deed is issued one cannot tell if it was on one sheet of paper or not. Should the deed be challenged at a later date, evidence would be required to prove whether it was on one sheet or not.
In terms of section 3(10) any date or place of execution given in a will is presumed to be correct. Wills which are attested are self-evidencing and require no further action. But a will which is only subscribed requires to be ‘set up’. An application is made to the court under section 4 of the Succession (Scotland) Act 1964, which was amended by the 1995 Act. If the court is satisfied with the evidence then a docket will be endorsed on the will to that effect.
3.46.1 Wills – executed with a mark
Prior to 1995, a will could not be valid if it was signed by a mark i.e. a thumb print or ‘X’. The 1995 Act permits an initial or mark or name to be used for testamentary deeds, provided it is the granter’s usual method of signing and it is intended by the granter to be his or her signature.
End of Topic
Updated May 2005