Requirements for Execution

Introduction

The deeds presented for registration must be examined by the Keeper to ensure that they are ex facie valid. For example, LBTT, parties named and designed, present tense words of conveyance, adequate description, authentication, etc. must be checked.

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Authentication and Execution

Execution or attestation is the term used in relation to the signing and witnessing of a deed. Until 1995 the rules for execution had changed little since the 16^th century. A report by the Scottish Law Commission entitled "Report on Requirements of Writing", published in 1988, subsequently led to the Requirements of Writing (Scotland) Act 1995, (‘the 1995 Act’), which made major changes in the law of execution of deeds and the legal requirements for writing.

The 1995 Act received Royal Assent on 1 May 1995 and came into force on 1 August 1995. It applies to all documents executed on or after 1 August 1995. For the Keeper, the single most important change is that in a document executed on or after 1 August 1995 the signature of a granter (being a person) requires only one witness instead of two.

The rules governing the majority of deeds, which can be registered in the Books of Council and Session are contained in the 1995 Act. See the information on Requirements of Writing and Authentication of Registrable Deeds for more information.

The Act identifies three situations in which writing is required, and if alterations are made to the original writing these must also be in writing. The three situations are:

1. For dealings in relation to interests in land;
2. The making of wills, codicils and other testamentary writings; and
3. The constitution of contracts or unilateral obligations (a promise in normal language) for the creation, transfer, variation or extinction of interests in land and for the constitution of certain unilateral obligations and trusts.

Categories (1) and (2) perpetuate the law prior to the 1995 Act. The law is, however, changed in relation to category (3), but the changes are not directly relevant to the registration work of RoS.