Signing and Execution

Subscription on the Last Page

Subscription of a document consists of the granter and the witness signing at the end of the last page of the main document, i.e. disregarding any annexation. At one time granters had to sign every separate sheet (Deeds Act 1696). This was abandoned, except for wills, from 29 November 1970. (Conveyancing and Feudal Reform (Scotland) Act 1970, section 44). An exception to this rule is the Sovereign, who is the only person who can validly sign a deed at the top (which is known as superscription).

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").

If the last page of a document contains insufficient space for all granters to subscribe, an additional page or sheet may be used for some of the signatures provided at least one granter signs at the end of the original last page of the document (section 7(3) of the 1995 Act). This is a useful provision for cases involving multiple granters.

Problems can arise if part or whole of the testing clause is upon a new page, particularly if that page is on a separate sheet. In this case the granter will have signed only a blank page or sheet. This would mean that the granter would not have signed at the end of the last page of the deed. According to Halliday (Conveyancing Law and Practice, John M Halliday, 2^nd edition by Iain J S Talman, W Green at paragraph 3-138), it is thought that this would not amount to subscription under the requirements of section 7(1) of the 1995 Act. Thus, where there is more than one granter, at least one must sign at the end of the last page and any additional granter may sign on an additional page. This means that it is unacceptable to have the testing clause on a separate page. The testing clause must commence on a page that also contains the operative clauses of the deed, however short that part might be. See Authentication of Registrable Deeds for more information.

Signatures

If the granter or the witness is a person, the signature must conform to one of the following:

Option 1:-

The full name by which the granter is identified in the document or in any testing clause or its equivalent. (Sections 7(2)(a) (granter) and 7(5)(a) (witness) of the 1995 Act.)

Option 2:-

Surname preceded by at least one forename or initial or abbreviation or familiar form of forename. (Sections 7(2)(b) (granter) and 7(5)(b) (witness) of the 1995 Act.)

These are the only forms of signature available in the case of attested writings. For other writings, some allowance is made for less formal types of signature or mark. When a signature complies with one of the two options, there is no need for a testing clause to state that the granter is signing ‘his or her usual signature’.

It is acceptable for titled people to sign using their title, e.g. the Earl of Seafield may subscribe ‘Seafield’. In Scotland, married women may sign using their maiden name but this should be declared in the testing clause. If a person signs in more than one capacity, e.g. as executor and as individual, a single signature is sufficient to bind that person in both capacities.

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.

The general rule laid down by section 6 of the 1995 Act is that a document is only registrable if the subscription of the granter is self-evidencing or, where there is more than one granter, the subscription of at least one of the granters is self-evidencing. Note that the place and date of execution need not be self-evidencing in order for registration to be competent. If the subscription of the granter of a registrable deed is patently not self evidencing, the Keeper cannot accept the deed for registration.

Execution

The execution of an attested writing is achieved as follows:

• The granter subscribes. From that moment, the deed is formally valid.
• A single witness is required who must not be another granter, must be 16 or over, must be capax and must know the granter, i.e. has credible information as to his identity such as an introduction by a third party.
• Either the witness sees the granter subscribe or the granter acknowledges his subscription to the witness. In either case, the witness signs immediately thereafter, in what is termed ‘one continuous process’.
• The signature of the witness must conform to the same requirements which bind the signature of a granter.

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 surface of 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 registration because there may be other identification on the face of the annexation, which is sufficient to permit its acceptance.

Signature on an Erasure

This is acceptable but not desirable.