Requirements of Writing (Scotland) Act 1995

Writing required for certain contracts, obligations, trusts, conveyances and wills

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• (1) Subject to subsection (2) below and any other enactment, writing shall not be required for the constitution of a contract, unilateral obligation or trust.

• (2) Subject to subsection (3) below, a written documentwhich is a traditional document complying with section 2or an electronic document complying with section 9B of this Act shall be required for—

• (a) the constitution of—

• (i) a contract or unilateral obligation for the creation, transfer, variation or extinction of a real right in land;

• (ii) a gratuitous unilateral obligation except an obligation undertaken in the course of business; and

• (iii) a trust whereby a person declares himself to be sole trustee of his own property or any property which he may acquire;

• (b) the creation, transfer, variation or extinction of a real right in land otherwise than by the operation of a court decree, enactment or rule of law; and

• (ba) the constitution of an agreement under section 66(1) of the Land Registration etc. (Scotland) Act 2012 (asp 5),

• (c) the making of any will, testamentary trust disposition and settlement or codicil.

• (2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Where a contract, obligation or trust mentioned in subsection (2)(a) above is not constituted in a ... document complying with section 2 or, as the case may be, section 9B of this Act, but one of the parties to the contract, a creditor in the obligation or a beneficiary under the trust (“the first person”) has acted or refrained from acting in reliance on the contract, obligation or trust with the knowledge and acquiescence of the other party to the contract, the debtor in the obligation or the truster (“the second person”)—

• (a) the second person shall not be entitled to withdraw from the contract, obligation or trust; and

• (b) the contract, obligation or trust shall not be regarded as invalid,

on the ground that it is not so constituted, if the condition set out in subsection (4) below is satisfied.

• (4) The condition referred to in subsection (3) above is that the position of the first person—

• (a) as a result of acting or refraining from acting as mentioned in that subsection has been affected to a material extent; and

• (b) as a result of such a withdrawal as is mentioned in that subsection would be adversely affected to a material extent.

• (5) In relation to the constitution of any contract, obligation or trust mentioned in subsection (2)(a) above, subsections (3) and (4) above replace the rules of law known asrei interventus and homologation.

• (6) This section shall apply to the variation of a contract, obligation or trust as it applies to the constitution thereof but as if in subsections (3) and (4) for the references to acting or refraining from acting in reliance on the contract, obligation or trust and withdrawing therefrom there were substituted respectively references to acting or refraining from acting in reliance on the variation of the contract, obligation or trust and withdrawing from the variation.

• (7) In this section “real right in land” means any real right in or over land, including any right to occupy or to use land or to restrict the occupation or use of land, but does not include—

• (a) a tenancy;

• (b) a right to occupy or use land; or

• (c) a right to restrict the occupation or use of land,

if the tenancy or right is not granted for more than one year, unless the tenancy or right is for a recurring period or recurring periods and there is a gap of more than one year between the beginning of the first, and the end of the last, such period.

• (7A) A private residential tenancy as defined in the Private Housing (Tenancies) (Scotland) Act 2016 is not a “real right in land” for the purposes of this section.

• (8) For the purposes of subsection (7) above “land” does not include—

• (a) growing crops; or

• (b) a moveable building or other moveable structure.

Type of writing required for formal validity of certain documents

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• (1) No traditional document required by section 1(2) of this Act shall be valid in respect of the formalities of execution unless it is subscribed by the granter of it or, if there is more than one granter, by each granter, but nothing apart from such subscription shall be required for the document to be valid as aforesaid.

• (2) A contract mentioned in section 1(2)(a)(i) of this Act may be regarded as constituted or varied (as the case may be) if the offer is contained in one or more traditional documents and the acceptance is contained in another traditional document or other traditional documents, and such document is subscribed by the granter or granters thereof.

• (3) Nothing in this section shall prevent a traditional document which has not been subscribed by the granter or granters of it from being used as evidence in relation to any right or obligation to which the document relates.

• (4) This section is without prejudice to any other enactment which makes different provision in respect of the formalities of execution of a document to which this section applies.

Presumption as to granter’s subscription or date or place of subscription

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• (1) Subject to subsections (2) to (7) below, where—

• (a) a traditional document bears to have been subscribed by a granter of it;

• (b) the document bears to have been signed by a person as a witness of that granter’s subscription and the document, or the testing clause or its equivalent, bears to state the name and address of the witness; and

• (c) nothing in the document, or in the testing clause or its equivalent, indicates—

• (i) that it was not subscribed by that granter as it bears to have been so subscribed; or

• (ii) that it was not validly witnessed for any reason specified in paragraphs (a) to (e) of subsection (4) below,

the document shall be presumed to have been subscribed by that granter.

• (2) Where a traditional document is a testamentary document consisting of more than one sheet, it shall not be presumed to have been subscribed by a granter as mentioned in subsection (1) above unless, in addition to it bearing to have been subscribed by him and otherwise complying with that subsection, it bears to have been signed by him on every sheet.

• (3) For the purposes of subsection (1)(b) above—

• (a) the name and address of a witness may be added at any time before the document is—

• (i) founded on in legal proceedings; or

• (ii) registered for preservation in the Books of Council and Session or in sheriff court books; and

• (b) the name and address of a witness need not be written by the witness himself.

• (4) Where, in any proceedings relating to a traditional document in which a question arises as to a granter’s subscription, it is established—

• (a) that a signature bearing to be the signature of the witness of that granter’s subscription is not such a signature, whether by reason of forgery or otherwise;

• (b) that the person who signed the document as the witness of that granter’s subscription is a person who is named in the document as a granter of it;

• (c) that the person who signed the document as the witness of that granter’s subscription, at the time of signing—

• (i) did not know the granter;

• (ii) was under the age of 16 years; or

• (iii) was mentally incapable of acting as a witness;

• (d) that the person who signed the document, purporting to be the witness of that granter’s subscription, did not witness such subscription;

• (e) that the person who signed the document as the witness of that granter’s subscription did not sign the document after him or that the granter’s subscription or, as the case may be, acknowledgement of his subscription and the person’s signature as witness of that subscription were not one continuous process;

• (f) that the name or address of the witness of that granter’s subscription was added after the document was founded on or registered as mentioned in subsection (3)(a) above or is erroneous in any material respect; or

• (g) in the case of a testamentary document consisting of more than one sheet, that a signature on any sheet bearing to be the signature of the granter is not such a signature, whether by reason of forgery or otherwise,

then, for the purposes of those proceedings, there shall be no presumption that the document has been subscribed by that granter.

• (5) For the purposes of subsection (4)(c)(i) above, the witness shall be regarded as having known the person whose subscription he has witnessed at the time of witnessing if he had credible information at that time of his identity.

• (6) For the purposes of subsection (4)(e) above, where—

• (a) a document is granted by more than one granter; and

• (b) a person is the witness to the subscription of more than one granter,

the subscription or acknowledgement of any such granter and the signature of the person witnessing that granter’s subscription shall not be regarded as not being one continuous process by reason only that, between the time of that subscription or acknowledgement and that signature, another granter has subscribed the document or acknowledged his subscription.

• (7) For the purposes of the foregoing provisions of this section 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.

• (8) Where—

• (a) by virtue of subsection (1) above a document to which this subsection applies is presumed to have been subscribed by a granter of it;

• (b) the document, or the testing clause or its equivalent, bears to state the date or place of subscription of the document by that granter; and

• (c) nothing in the document, or in the testing clause or its equivalent, indicates that that statement as to date or place is incorrect,

there shall be a presumption that the document was subscribed by that granter on the date or at the place as stated.

• (9) Subsection (8) above applies to any traditional document other than a testamentary document.

• (10) Where—

• (a) a traditional document is a testamentary document bearing to have been subscribed and the document, or the testing clause or its equivalent, bears to state the date or place of subscription (whether or not it is presumed under subsections (1) to (7) above to have been subscribed by a granter of it); and

• (b) nothing in the document, or in the testing clause or its equivalent, indicates that that statement as to date or place is incorrect,

there shall be a presumption that the statement as to date or place is correct.

Presumption as to granter’s subscription or date or place of subscription when established in court proceedings

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• (1) Where a traditional document bears to have been subscribed by a granter of it, but there is no presumption under section 3 of this Act that the document has been subscribed by that granter, then, if the court, on an application being made to it by any person who has an interest in the document, is satisfied that the document was subscribed by that granter, it shall—

• (a) cause the document to be endorsed with a certificate to that effect; or

• (b) where the document has already been registered in the Books of Council and Session or in sheriff court books, grant decree to that effect.

• (2) Where a traditional document bears to have been subscribed by a granter of it, but there is no presumption under section 3 of this Act as to the date or place of subscription, then, if the court, on an application being made to it by any person who has an interest in the document, is satisfied as to the date or place of subscription, it shall—

• (a) cause the document to be endorsed with a certificate to that effect; or

• (b) where the document has already been registered in the Books of Council and Session or in sheriff court books, grant decree to that effect.

• (3) On an application under subsection (1) or (2) above evidence shall, unless the court otherwise directs, be given by affidavit.

• (4) An application under subsection (1) or (2) above may be made either as a summary application or as incidental to and in the course of other proceedings.

• (5) The effect of a certificate or decree—

• (a) under subsection (1) above shall be to establish a presumption that the document has been subscribed by the granter concerned;

• (b) under subsection (2) above shall be to establish a presumption that the statement in the certificate or decree as to date or place is correct.

• (6) In this section “the court” means—

• (a) in the case of a summary application—

• (i) the sheriff in whose sheriffdom the applicant resides; or

• (ii) if the applicant does not reside in Scotland, the sheriff at Edinburgh; and

• (b) in the case of an application made in the course of other proceedings, the court before which those proceedings are pending.

Alterations to documents: formal validity and presumptions

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• (1) An alteration made to a traditional document required by section 1(2) of this Act—

• (a) before the document is subscribed by the granter or, if there is more than one granter, by the granter first subscribing it, shall form part of the document as so subscribed;

• (b) after the document is so subscribed shall, if the alteration has been signed by the granter or (as the case may be) by all the granters, have effect as a formally valid alteration of the document as so subscribed,

but an alteration made to such a document otherwise than as mentioned in paragraphs (a) and (b) above shall not be formally valid.

• (2) Subsection (1) above is without prejudice to—

• (a) any rule of law enabling any provision in a testamentary document to be revoked by deletion or erasure without authentication of the deletion or erasure by the testator;

• (b) the Erasures in Deeds (Scotland) Act 1836 and section 54 of the Conveyancing (Scotland) Act 1874.

• (3) The fact that an alteration to a traditional document was made before the document was subscribed by the granter of it, or by the granter first subscribing it, may be established by all relevant evidence, whether written or oral.

• (4) Where a traditional document bears to have been subscribed by the granter or, if there is more than one granter, by all the granters of it, then, if subsection (5) or (6) below applies, an alteration made to the document shall be presumed to have been made before the document was subscribed by the granter or, if there is more than one granter, by the granter first subscribing it, and to form part of the document as so subscribed.

• (5) This subsection applies where—

• (a) the document is presumed under section 3 of this Act to have been subscribed by the granter or granters (as the case may be);

• (b) it is stated in the document, or in the testing clause or its equivalent, that the alteration was made before the document was subscribed; and

• (c) nothing in the document, or in the testing clause or its equivalent, indicates that the alteration was made after the document was subscribed.

• (6) This subsection applies where subsection (5) above does not apply, but the court is satisfied, on an application being made to it, that the alteration was made before the document was subscribed by the granter or, if there is more than one granter, by the granter first subscribing it, and causes the document to be endorsed with a certificate to that effect or, where the document has already been registered in the Books of Council and Session or in sheriff court books, grants decree to that effect.

• (7) Subsections (3), (4) and (6) of section 4 of this Act shall apply in relation to an application under subsection (6) above as they apply in relation to an application under subsection (1) of that section.

• (8) Where an alteration is made to a traditional document after the document has been subscribed by a granter, Schedule 1 to this Act (presumptions as to granter’s signature and date and place of signing in relation to such alterations) shall have effect.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration of documents

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• (1) Subject to subsection (3) below ..., it shall not be competent—

• (a) to record a traditional document in the Register of Sasines; or

• (b) to register a traditional document for execution or preservation in the Books of Council and Session or in sheriff court books,

• (ba) to register a traditional document in the Land Register of Scotland,

unless subsection (2) below applies in relation to the document.

• (2) This subsection applies where—

• (a) the document is presumed under section 3 or 4 of this Act to have been subscribed by the granter; or

• (b) if there is more than one granter, the document is presumed under section 3 or 4 or partly under the one section and partly under the other to have been subscribed by at least one of the granters.

• (3) Subsection (1) above shall not apply in relation to—

• (a) a document's—

• (i) being recorded in the Register of Sasines, or

• (ii) being registered in the Land Register of Scotland, in the Books of Council and Session or in sheriff court books,

if an enactment requires or expressly permits such recording or registration notwithstanding that the document is not presumed to have been subscribed by the granter or by at least one of the granters,

• (b) the recording of a court decree in the Register of Sasinesor the registering of such a decree in the Land Register of Scotland;

• (c) the registration in the Books of Council and Session or in sheriff court books of—

• (i) a testamentary document;

• (ii) a document which is directed by the Court of Session or (as the case may be) the sheriff to be so registered;