requirements of writing

requirements of writing

what must be done to make certain writings effective. The generic name for such rules is, formal validity. This particular phrase is that now in use in Scotland. The key concept is that of the self-proving deed. The essential requirement is that the deed be signed by the grantor and witnessed by one witness whose name and address must be stated. The document is not self-proving if the signature purporting to be that of a witness is false, if the witness is also the grantor, if he did not know the grantor, is under 16 years of age, is mentally incapable or does not witness the signature or its acknowledgement. Documents need only be signed on the last page unless they are wills.

Where there is not statutory presumption of self-proving status, the court can be petitioned to declare it so. Alterations made prior to execution are valid if the deed itself is signed and they are presumed as valid if mentioned in the testing clause.

Only certain contracts need to be in writing and of these only some require to be self-proving. Writing is required for the creation transfer or variation of an interest in land and for the making of wills. It is required for a trust where a person is making himself sole trustee of his own property. Where there is a need for writing under the Act and there is none, special provisions exist to allow the contract to be upheld, notwithstanding the absence of writing, reflecting the common law doctrines of REI INTERVENTUS and HOMOLOGATION, which both still exist, albeit they may not be used in cases where the Act applies. The special provisions focus on reliance by the parties and whether such reliance has been with the knowledge and acquiescence of the other party to a material extent and take into account whether there would be an adverse effect if the contract were allowed to be ignored.

Collins Dictionary of Law © W.J. Stewart, 2006
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