Witnesses

If a witness is required to make a deed self evidencing, then they must be adequately designed by both name and address in terms of section 3(1)(b) of the Requirements of Writing (Scotland) Act 1995 (‘the 1995 Act’). This means that the rules that are applied to parties designations as set out in Designation of the parties to the deed cannot be used in relation to witnesses. The designation must not be ‘erroneous in any material respect’. The designation is separate from the signature. This means that it is not enough merely to add the address of the witness under the signature. The name must be repeated, because the Act requires both name and address in addition to the signature.

A single witness may sign only once even if he is witnessing more than one signature as section 7(5) of the 1995 Act states that a person witnessing the signature of several granters need only sign once. However, this provision must be read together with sections 3(4)(e) and 3(6) of the 1995 Act, which require that it must be one continuous process. If the parties sign on different days it may still be acceptable if the witness only signs once. However, it must be borne in mind that in terms of section 3(7) of the 1995 Act a person witnesses a granter’s subscription of a document (a) if he sees the granter subscribe it; or (b) if the granter acknowledges his subscription to that person. Thus, unless all the granters sign (or acknowledge their signatures) together, the witness will require to sign separately in respect of each granter.

Useful links

Requirements of Writing

Signing (2012 Act Manual)

Authentication of Registrable Deeds (2012 Act Manual)

Testing Clauses (2012 Act Manual)

Requirements of Writing (Scotland) Act 1995 (external link)

Are Witnesses Always Required?

Section 6 of the 1995 Act states that it will not be possible to register a document for execution or preservation in the Register of Deeds and Probative Writs in the Books of Council and Session unless the subscription of the document has self proving status under section 3, by virtue of attestation by one witness, or has been certified by the court in terms of section 4 (section 6(1) of the 1995 Act refers). In terms of section 6(2) of the 1995 Act, where a document has been granted by more than one granter, it is competent to register that document if the subscription of at least one granter is self proving, either by attestation or certification. Therefore, provided at least one of the granter’s signatures is validly witnessed, a document is acceptable for registration.

This is not always clear. Therefore multi-party deeds where at least one of the granters has signed in a way that means the self-evidencing standard can't apply should be referred to your referral point in the first instance. Further, it is not clear how section 6(2) of the 1995 Act might affect particular types of deeds, for example, missives, which although registered by the Keeper as one document are in actual fact several documents linked together. It could be argued that a set of several letters as missives would be acceptable for registration, as long as one was witnessed, but there is doubt as to whether this situation would be provided for by section 6 of the 1995 Act.

For further information on the execution of deeds which do not appear to meet the requirements of the Requirements of Writing (Scotland) Act 1995 see the Further Guidance page on Requirements of Writing (Scotland) Act 1995 - signing by the granter. This page includes further details on section 6(2) of the 1995 and the effect that it has on multi-party deeds. (Please refer to the CAJR Team Leader)

Other Guidance

Witnesses require to be uniquely designed. For the avoidance of doubt, a postal town is not required if a house name or number, street and postcode are provided in the witness's designation. Any unusual variations should be referred to your referral officer.

Whilst witnesses require to be uniquely designed, where the locality or town where a deed is signed has been given, it is acceptable for the witness designation to state "there" rather than repeat the locality or town. For example if a deed is signed by the granter in Edinburgh and this is stated in the testing clause then the witness designation can be given as 'Michael Ross 5 Mains Street, there'. In this case "there" is sufficient to design the witness as residing at 5 Mains Street, Edinburgh. 

In terms of section 3(4)(b) of the Requirements of Writing (Scotland) Act 1995, a party to a deed cannot competently witness the signature of another party to that same deed.