AB - This title provides expert insight into how the Requirements of Writing (Scotland)Act 1995 brought about an overhaul of the Scottish system of execution of deeds.The Act simplified the rules about which rights may be constituted orally and which require writing. It prescribes the rights which, in Scots law, need writing for their constitution, and makes provision for how the writing is to be signed and authenticated. The Act now makes provision for electronic conveyancing, being updated to allow electronic documents to have the equivalent status and standards of validity and authenticity as paper. The book, which was first published in 1995, provides a detailed commentary, section by section, on every provision in the Act.Publishing in the Greens Annotated Acts series, this work provides authoritative commentary on the Act as it stands today, stating its full implications for those working within the Scottish legal system. h) The notarial certificate should narrate the exact procedure followed by the notary. The certificate must not state or imply that the notary was physically present with the individual when the document was executed. The procedure followed, including a description of the type of video technology used, should be recorded. Wills, testamentary trust disposition and settlements, and codicils, as Part 3 of the Requirements of Writing (Scotland) Act 1995 (electronic documents) has not yet been commenced for these deed types.

We won't register such documents even where they're in self-proving form or sworn before a notary public. Signing a deed Modifications of This Act in Relation to Subscription or Signing by Relevant Person under Section 9 an agreement between adjoining owners in relation to the accretion or erosion of their common boundary Signatures must be a ‘voluntary, spontaneous act of the granter’. The hand may not be guided nor can a pencilled signature be inked in. The hand may be supported if held above the wrist – but this should be avoided except in extreme emergency. b) sub-paragraph (1) only causes such a requirement not to apply in relation to a professional of a type that is mentioned in the definition of “relevant person”. What this means for notarising documentsPresumption as to granter’s subscription or date or place of subscription when established in court proceedings. The 1995 Act also allows deeds to be signed in a way that does not fit either of the two styles above, for example in the format surname forename, or by non-Roman characters, if that is the usual signature of the granter. However, the 1995 Act prohibits documents signed in this way from being self-proving (unless that is established in court proceedings or the form of signing is also replicated elsewhere in the deed). Where parties insist on signing in this way, care should therefore be taken to ensure that the form of signing is also narrated in the body or testing clause of the deed to ensure self-proving status can be obtained.

The signed document must then be sent to the notary to allow them to notarise it and this can be done is a number of ways:The provisions that were in place in the Coronavirus (Scotland) (No2) Act 2020 Schedule 4, part 7 have now been incorporated into the Requirements of Writing (Scotland) Act 1995. This is by virtue of section 39 of the Coronavirus (Recovery and Reform) (Scotland) Act 2022. The provisions now appear in section 10A of the Requirements of Writing (Scotland) Act 1995 which came into effect on 1 October 2022.

g) The notary should not be considered, and should not be described as, a witness to the document certified under this Guidance. The Register of Deeds accepts electronic documents signed by a qualified electronic signature (QES) (subject to limited exceptions) through digital submission. Subject to subsection (2) below and any other enactment, writing shall not be required for the constitution of a contract, unilateral obligation or trust. a contract or unilateral obligation for the creation, transfer, variation or extinction of F2a real right in land; a gratuitous unilateral obligation except an obligation undertaken in the course of business; and a trust whereby a person declares himself to be sole trustee of his own property or any property which he may acquire; the creation, transfer, variation or extinction of F2a real right in land otherwise than by the operation of a court decree, enactment or rule of law; andIn Scotland, the general rule is that writing is not required to create a contract or a unilateral obligation or a trust. a) A notary may, subject to the conditions set out in paragraph 4, use video technology to certify the execution of a document signed (including by electronic signature) by an individual by means of a notarial act. A deed that is to be registered should also typically be witnessed. Witnesses should also sign in one of the two styles set out above.

Section 10A has made permanent the relaxation of any rule of law or statute which requires a solicitor or advocate ( s9 of the Requirements of Writing (Scotland) Act 1995) or notary (general notarial law) to be physically present when the granter signs a document where physical presence would have ordinarily been needed. It does not affect the ordinary law which requires witnesses to certain types of document, such as wills or registerable deeds, where there is no need for a solicitor or notary to be present. f) If agreed to fall within the scope of the work, the notary must use all reasonable endeavours to establish that this procedure will result in the acceptance of the document in the receiving jurisdiction. If this is not agreed to fall within the scope of the work the notary should advise the deponent that they are not accepting responsibility for ensuring the receiving jurisdiction will accept the document. It is competent for a blind person to sign a deed, see Authentication of Registrable Deeds for the procedure adopted (notarial or vicarious execution). This is governed by section 9 of the Requirements of Writing (Scotland) Act 1995 ("the 1995 Act"). This Practice Note considers both the traditional method of execution and execution by counterpart under Scots law. Contracts or obligations that must be in writing Digital extracts are not yet available for original paper hard-copy deeds submitted for Register of Deeds. InvoicingA deed that is to be registered should be signed by the granter and witnessed( specific guidance for QES above). National Records of Scotland and Register of Deeds (RoD) function as a repository for the safe keeping of traditional deeds. Find the C&S1 form on our online services portal. If you don't have an online services login, you can request access. The signature of the witness must conform to the same requirements which bind the signature of a granter.