S6.2 Requirements of Writing (Scotland) Act 1995
This Act came into operation on 1 August 1995 and applies to documents executed (signed) on or after that date. The Act makes far reaching changes to the law of execution and to when formal writing is required.
It is based on two publications by the Scottish Law Commission presented in July 1985 and July 1988. The Act builds on existing legislation. As the Act is not retrospective, i.e. applies only to documents executed after 1 Aug. 1995, we need to consider both the “old” and “new” sets of rules.
Deeds executed on or after 1 Aug. 1995, which are recorded in either the Sasine or the Land Register, require to conform to the 1995 Act.
An example of a probative deed is an Attested deed. Attested means witnessed, and an Attested deed is one which is subscribed not only by the Granter(s) (and any consentor) but also by one witness.
A probative deed is accorded a special status by law. It is presumed to be genuine because it is probative. Anyone relying on such a deed merely has to present it in evidence, they do not have to lead any further evidence to prove its authenticity. This throws the burden of proof on to the person seeking to challenge the deed, who must produce sufficient evidence to show that although the deed looks valid, there are good legal reasons why it is not so; e.g. If it is forged, that fraud was involved in its creation, or that there is some defect in the observance of the formalities required for a writ to be probative. Such a challenge can only be mounted in the Court of Session, the Supreme Civil Court of Scotland, in an action to have the deed reduced. The Court will not lightly reduce a probative deed and the burden of proof on the challenger is very heavy. Actions of Reduction are not often successful, thus anybody relying on a probative deed is in a very strong position.
The GRANTER, or parties to the deed must subscribe (sign) on the last page of the deed. Usually it is only the Granter who signs, but if there are any CONSENTORS party to the transaction, they also should sign.
Registers of Scotland (RoS) seeks to ensure that the information published in the Sasines Manual is up to date and accurate but it may be amended from time to time.
The Manual is an internal document intended for RoS staff only. The information in the Manual does not constitute legal or professional advice and RoS cannot accept any liability for actions arising from its use.
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