GLOSSARY
Due execution definition
What does Due execution mean?
The requirements for the execution of a valid will, set out in the Wills Act 1837, s 9.
In order to execute a valid will, the will must be in writing; it must be signed by the testator or by some other person and in his presence and by his direction; it must appear that the testator intended by his signature to give effect to the will; the signature must be made or acknowledged by the testator in the presence of two or more attesting witnesses each of whom attest to the testator's having signed the will in his presence and acknowledge his signature and signs the will in the presence of the testator.
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Probate actions—fraud and forgery
Testamentary dispositions will be set aside where:•the Will itself is forged•the Will provisions are as a result of dishonest statements or actions•a person, with a view to a gain for himself or herself, suppresses or destroys a Will•a person advances a Will that he or she knows to be false or invalid with a view to his or her gainThere are elements of actual undue influence in the concept of testamentary fraud and, similarly, the burden of proof is upon the party alleging the fraud although, unlike with undue influence, fraud does not require a degree of coercion. That burden is the balance of probabilities.Patently, an allegation of fraud is serious. It has therefore caused some discussion as to whether a higher standard of proof should be applied. Cases now indicate that the civil standard will be appropriate, the explanation of that standard having been set out by Lord Nicholls in Re H and others (minors) (sexual abuse: standard of proof)[1996] 1 All ER 1.The standard of proof in fraud is the civil standard but, within that standard, it also appears to be good law that the more serious the allegation, the higher the degree of probability that is required; but it need not, in a civil case, reach the very high standard required by
Will errors—affidavit evidence
Affidavit evidenceUsually the information contained in application form PA1P or PA1A or the online application (formerly a separate statement of truth) is the only evidence the court will require in order to prove the deceased’s Will. However, there may be circumstances where further evidence is needed, which may be in the form of an affidavit.With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059 to provide for the use of witness statements as an alternative to affidavits for certain non-contentious probate applications and processes.Due executionThe inclusion in a Will of an attestation clause prima facie showing compliance with the requirements of section 9 of the Wills Act 1837 raises a presumption of due execution. Practitioners will need to decide whether any testamentary document satisfies the requirements of that section.There may be doubt, such as when:•the signature of the testator or of either of the witnesses is in an unusual position•the signature of the testator or of either of the witnesses is imperfect•no attestation clause is included, or•the attestation clause is insufficientIn that case, the matter should be referred by ex parte application to the district judge/registrar. The practitioner should write to the registry enclosing a copy
Jurisdiction—trusts and estates—the High Court and County Courts
The High CourtThe Chancery Division of the High Court, which operates after 2 October 2017 as part of the Business and Property Courts, undertakes a broad range of work which includes contentious probate business and claims relating to estates and trusts. Practitioners issuing proceedings in the Chancery Division should be familiar with the Civil Procedure Rules 1998 (CPR) and the Chancery Guide which provides practical information and guidance not contained in the CPR or the PDs. The Chancery Guide is to be used in conjunction with the CPR and PDs. In particular, CPR 57 together with the Chancery Guide, para 24 for probate and inheritance claims and CPR 64 together with the Chancery Guide, para 25 for estates and trusts.In 1862, the first Rules for Contentious Business were introduced. In 1873 the Probate Court was absorbed in to the Probate, Divorce and Admiralty Division of the High Court with the Rules for Contentious Business being absorbed in to the Rules of the Supreme Court in 1964. In 1971, jurisdiction in probate matters was vested in the newly created Family Division with contentious matters assigned to the Chancery Division. Since the Senior Courts Act 1981 (SCA 1981), the
Probate actions—want of due execution
In order to validate their Wills testators dying before 1 January 1964 must have followed the execution formalities set out in the Wills Act 1837 (WA 1837) and Wills Act Amendment Act 1852 (WAAA 1852). For testators dying on or after that date the Wills Act 1963 (WA 1963) provides relief from the rigidity of those earlier Acts.Amendments in the Administration of Justice Act 1982 (AJA 1982) extend the availability of limited reliefs to those testators who make errors in execution but only in respect of those who die on or after 1 January 1983.As amended, the execution formalities now provide that a Will shall not be valid unless:•it is in writing and signed by the testator or by some other person in his presence and by his direction and•it appears that the testator intended by his signature to give effect to the Will, and•the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and•each witness either:◦attests and signs the Will◦acknowledges their signaturein the presence of the testator (but not necessarily in the presence of any other witness)but no form of attestation shall be necessary.If a Will does not comply
Validity of Wills—presumptions
If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply:•due execution•capacity•knowledge and approvalPresumption as to due executionThe court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required:'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which he had taken care to ensure would be given effect to in a way which complied with the law.'There will be a strong presumption of due execution where the Will is in regular form. If the form is irregular or unusual, the maxim does not apply with the same strong
Requirements for a valid Will
CORONAVIRUS (COVID-19): For Wills made on or after 31 January 2020, the formal requirement for a valid Will to be witnessed in the presence of two witnesses includes both physical and virtual presence, to allow Wills to be validly witnessed remotely by way of video conference. For the latest guidance on this temporary change (which takes effect for Wills made up to and including 31 January 2024), see Practice Note: Coronavirus (COVID-19)—remote witnessing of Wills. Note that the guidance below relates to WA 1837 in its unchanged form.Checking whether a Will is validOnce the Will has been obtained, the Will and any codicil should be checked to ensure it complies with the legal requirements for a valid Will.The Will should be checked to ensure that it:•has been executed in accordance with the appropriate formalities•has not been revoked by operation of law on marriage/civil partnership•has not been revoked by deliberate act of the testator by later Will or codicil or destruction•has not been altered•was made when the testator was over 18 (or if they were a minor, that they were a soldier on actual military service or a mariner or seaman at sea)•is clear of staple or paperclip marks•does not have any pages missing•is the latest WillA valid WillThe basic requirements for a valid Will are that the
Lost Will procedure
The Will cannot be foundWhere the deceased’s next of kin or the personal representatives (PRs) believe that the deceased had made a Will but it cannot be found among the deceased's papers nor a reference to its location found in the deceased’s emails , various enquiries and searches should be considered:•enquiries of the deceased's family and friends•enquiries of the deceased's professional advisors•enquiries of the deceased's bankers or safe deposit box keeper•search of the HM Courts & Tribunals Service (HMCTS) Probate Service to see if the deceased’s Will was deposited there•search of the Certainty National Will Register to see if the Will is registered there•placement of an advert for the Will in the Law Society GazetteFor further information, see Practice Note: Obtaining the Will.The application for the orderIf the original Will or codicil still cannot be found and is understood to be lost or has been accidentally destroyed or was found but has been lost since the deceased’s death, probate of a draft, copy or reconstruction of the Will or codicil may be obtained provided an order for leave to prove it is first obtained.The procedure for the order is set out in rule 54 of the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024. The same procedure is used where probate of
Trademarks—Philippines—Q&A guide
Trademarks—Philippines—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to trademarks in Philippines published as part of the Lexology Getting the Deal Through series by Law Business Research (published: March 2022). Authors: Villaraza & Angangco—Katrina V. Doble; Danielle Francesca T.C. San Pedro 1. What is the primary legislation governing trademarks in your jurisdiction? The primary legislation is Republic Act No. 8293 or the Intellectual Property Code of the Philippines. 2. Which international trademark agreements has your jurisdiction signed? The Philippines is a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Paris Convention for the Protection of Industrial Property and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. 3. Which government bodies regulate trademark law? The National Committee on Intellectual Property Rights (NCIPR) is a 12-member inter-agency body that formulates and implements plans and policies to strengthen the protection and enforcement of IP rights in the Philippines. The Philippine Intellectual Property Office is the primary government agency tasked with the regulation of trademarks in the Philippines, particularly registration and enforcement. Other members of the NCIPR that specifically enforce trademark laws are the Bureau of Customs, the National Bureau of Investigation and the Philippine National Police. The Food and Drug Administration also deals with trademarks, but only in relation to identifying the brand names of products that are under its regulatory scope. 4. Who
Requirements for a valid Will
Requirements for a valid Will CORONAVIRUS (COVID-19): For Wills made on or after 31 January 2020, the formal requirement for a valid Will to be witnessed in the presence of two witnesses includes both physical and virtual presence, to allow Wills to be validly witnessed remotely by way of video conference. For the latest guidance on this temporary change (which takes effect for Wills made up to and including 31 January 2024), see Practice Note: Coronavirus (COVID-19)—remote witnessing of Wills. Note that the guidance below relates to WA 1837 in its unchanged form. Checking whether a Will is valid Once the Will has been obtained, the Will and any codicil should be checked to ensure it complies with the legal requirements for a valid Will. The Will should be checked to ensure that it: • has been executed in accordance with the appropriate formalities • has not been revoked by operation of law on marriage/civil partnership • has not been revoked by deliberate act of the testator by later Will or codicil or destruction • has not been altered • was made when the testator was over 18 (or if they were a minor, that they were a soldier on actual military service or a mariner or seaman at sea) • is clear of staple or paperclip marks • does not have any pages missing • is the latest Will A valid Will The basic requirements for a valid Will are that the testator must: • have the
Professional negligence claims—Will drafting
Professional negligence claims—Will drafting This Practice Note sets out the basis for professional negligence claims by disappointed beneficiaries against the draftsperson who drew up the relevant Will. Professional negligence claims In broad terms, in order to succeed in a negligence action a claimant must show that the: • defendant owed a duty of care to the claimant • defendant breached their duty by an act or omission • loss for which the claimant seeks damages was caused by the act or omission, there is a sufficient nexus between the loss and the act or omission and the loss is not too remote • loss is not vitiated by another factor such as a failure to mitigate Any claim must also be brought within the relevant limitation period. For further details, see Checklist: Professional negligence claim—scope of duty, causation and remoteness and Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity (available subject to subscription). The duty of care Historic position The historic position was that a beneficiary could have no cause of action in relation to mistakes in the preparation of a Will due to privity of contract. A solicitor owed a duty to their client, the testator, and not to the beneficiaries of the testator’s estate. In Robertson v Fleming, the House of Lords endorsed (obiter dicta) this restrictive approach. Lord Campbell LC said that a disappointed beneficiary could
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Guide to executing deeds and documents in property transactions
Guide to executing deeds and documents in property transactions This Precedent sets out precedent execution clauses for the types of entities most commonly encountered in property transactions. It includes provisions for both contracts and deeds. Most entities will have a choice of methods of execution and therefore it is important to check with your client as to their preferred/required method. Where appropriate, the example execution clauses specified are those prescribed by the Land Registration Rules 2003 or recommended by HM Land Registry (HMLR) in the relevant HMLR Practice Guide. For deeds which are to be submitted to HMLR, the form of execution should always be checked against current HMLR requirements. See Practice Note: Property deeds—use and execution of deeds in property transactions — HM Land Registry requirements. Note that a contract for the sale of land, or of any interest in land, is void unless it complies with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989). That means it must: • be in writing • contain or incorporate all of the terms expressly agreed by the parties; and • be signed by or on behalf of the parties See Practice Note: Contracts for the sale of land—formation, signature and variation. To be a deed, an instrument must comply with the provisions of LP(MP)A 1989, s 1, which means that it must: • make it clear on its face
Placing agreement—AIM
Placing agreement—AIM This Agreement is made on [insert day and month] 20[insert year] Parties 1 [insert name of company] a company incorporated in [England and Wales] under number [insert company number] whose registered office is at [insert address] (the Company); 2 [insert name of the nominated adviser] a company incorporated in England and Wales under number [insert company number] whose registered office is at [insert address] (the Nomad); and 3 the persons whose names and addresses are set out in Schedule 1 (the Directors). Recitals (A) The Company was incorporated under the Companies Act [insert relevant year] as a [public OR private] company limited by shares under company number [insert number] on [insert date] under the name [insert name of company on incorporation]. [On [insert date] the Company [re-registered as a public company limited by shares and ]changed its name to [insert new name of company]]. (B) [A certificate permitting the Company to do business and exercise any borrowing powers was issued by the Registrar of Companies pursuant to section 761 of the Companies Act 2006 on [insert date].] (C) As at the date of this Agreement the Company has an issued share capital of £[insert amount] divided into [insert number] ordinary shares of [insert nominal value of a share] pence each. (D) The Company is seeking admission to trading on AIM of the ordinary shares in issue and to be
Placing agreement—secondary offers
Placing agreement—secondary offers This agreement is made on [insert day and month] 20 [insert year] Parties 1 [insert name of Company] a company incorporated in [England and Wales] under number [insert company number] whose registered office is at [insert address] (the Company);[ and] 2 [insert name of the sponsor or nominated adviser] a company incorporated in [England and Wales] under number [insert company number] whose registered office is at [insert address] (the Placing Agent);[ and] 3 [the persons whose names and addresses are set out in Schedule 1 (the Directors).] Recitals (A) The Company was incorporated under the Companies Act [insert relevant year] as a [public OR private] company limited by shares under registered number [insert registered number] on [insert date] under the name [insert name of Company on incorporation].[ On [insert date] the Company[ re-registered as a public company limited by shares and] changed its name to [insert new name of Company]]. (B) As at the date of this agreement the Company has [an authorised share capital of £[insert amount] divided into [insert number] ordinary shares of [insert nominal value of a share] pence each [insert number] of which are issued and fully paid OR an issued share capital of £[insert amount] divided into [insert number] ordinary shares of [insert nominal value of a share] pence each]. (C) The Company is proposing to raise £[insert amount] (before commissions, fees
Heads of terms—loan notes
Heads of terms—loan notes [ On letterhead of the Investor ] Strictly private and confidential [insert Company name] [insert Company address] Date: [insert date] SUBJECT TO CONTRACT Dear Directors, Proposed investment of Loan Notes in [insert name and registered number of company] (Company) 1 Introduction 1.1 Further to our recent discussions, this letter sets out the principal terms and conditions upon and subject to which we have agreed to make an investment of loan notes to be issued by the Company (Proposed Investment). 1.2 The terms in this letter are not exhaustive and, with the exception of this paragraph 1.2 and paragraphs 5, 6, 7, 8 and 9, are subject to contract and not intended to be legally binding on the parties. No party to this letter shall be legally bound to proceed with the Proposed Investment unless and until a formal written loan note instrument is entered into. 2 Loan notes 2.1 The Company will issue to the Investor and the Investor will subscribe for £[insert amount] of loan notes (Loan Notes). The Loan Notes [will not be secured OR will be secured by a debenture creating a fixed and floating charge over the Company's assets]. 2.2 The Loan Notes are convertible as set out below into the following shares at the following conversion prices: 2.2.1 automatically, on a financing in excess of £[insert number] on or before [insert date], into the same class of shares as are issued in
Placing agreement—Main Market
Placing agreement—Main Market This Agreement is made on [insert day and month] 20[insert year] Parties 1 [insert name of company] a company incorporated in [England and Wales] under number [insert company number] whose registered office is at [insert address] (Company); 2 [insert name of the sponsor/broker] [a company OR an LLP] incorporated in [England and Wales] under number [insert company or LLP number] whose registered office is at [insert address] (Sponsor); and 3 the persons whose names and addresses are set out in Schedule 1 (the Directors). recitals (A) The Company was incorporated under the Companies Act [insert relevant year] as a [public OR private] company limited by shares under registered number [insert registered number] on [insert date] under the name [insert name of Company on incorporation]. [On [insert date] the Company [re-registered as a public company limited by shares and ]changed its name to [insert new name of Company].] (B) [A certificate permitting the Company to do business and exercise any borrowing powers was issued by the Registrar of Companies pursuant to section 761 of the Companies Act 2006 on [insert date].] (C) As at the date of this agreement the Company has [an authorised share capital of £[insert amount] divided into [insert number] ordinary shares of [insert nominal value of a share] pence each, [insert number] of which are issued and fully paid OR an issued share capital
Articles of association—listed company
Articles of association—listed company The Companies Act [1948 OR 1985 OR 2006] Public company limited by shares Articles of association of [insert name] PLC [(adopted by special resolution passed on [date])] Part 1, interpretation and limitation of liability 1 Defined terms and interpretation 1.1 In the articles, unless the context requires otherwise: articles • means the company’s articles of association; auditors • the auditors of the company for the time being; bankruptcy • includes individual insolvency proceedings in a jurisdiction other than England and Wales or Northern Ireland which have an effect similar to that of bankruptcy; board • means the board of directors of the company from time to time, or those directors present at a duly convened quorate meeting of the directors; CA 2006 • means the Companies Act 2006; call • has the meaning given in article 72; call notice • has the meaning given in article 72; certificated • means, in relation to a share, a share that it is not in uncertificated form; chairman • has the meaning given in article 14; chair of the meeting • has the meaning given in article 42; clear days • in relation to a notice, excludes the day the notice is deemed under the articles to be given and the day for which the specified period expires; company’s lien • has the meaning given in article 70; director • means a director of the company and includes any person occupying the position of director, by whatever name called; Disclosure Rules • means the disclosure guidance and
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Do you have a form of execution for a British Virgin Island company signing a deed?
Do you have a form of execution for a British Virgin Island company signing a deed? The Companies Act 2006 (CA 2006) sets out how companies incorporated in England and Wales or Northern Ireland may enter into and execute a deed. The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 (OC (EDRC) Regs), SI 2009/1917 apply CA 2006, ss 43, 44, 46 and 48 to overseas companies with modifications. CA 2006 (as modified by the OC (EDRC) Regs, SI 2009/1917, reg 4) provides that a document may be executed by an overseas company: • by the affixing of its common seal • if it is executed in any manner permitted by the laws of the territory in which the company is incorporated for the execution of documents by such a company, or • if it is signed by a person who, in accordance with the laws of the territory in which an overseas company is incorporated, is acting under its authority (express or implied) and it is expressed (in whatever form of words) to be executed by it If an overseas company is using a common seal to execute an English law deed, its constitution must be checked for
T has died testate, leaving most of their estate to a former partner, X. X is also named as T’s executor. How can T’s surviving relatives challenge the legacy to X and X’s appointment as executor?
T has died testate, leaving most of their estate to a former partner, X. X is also named as T’s executor. How can T’s surviving relatives challenge the legacy to X and X’s appointment as executor? First, to deal with the possible implication that T made the Will when they were still with X, but then separated, and did not change their Will before they died: unless there are questions over the validity of the Will—or T and X had been married and then divorced—there is not much that can be done regarding the legacies or the choice of executor, without the consent of X (or without bringing a claim for financial provision as set out below). If the grant has not yet been taken out (and X has not yet ‘intermeddled’ in T’s estate), T’s relatives could contact X to ask them to renounce the executorship and even to disclaim X’s interest in the estate. If X were willing to renounce, then a simple deed of renunciation could be lodged at the Probate Registry. If no one else had been named in T’s Will as executor in the event that X could not act, however, T’s relatives would then have to apply to court to have an administrator appointed. See Practice Note: Removal, renunciation and retirement of personal representatives. Challenging the validity of the Will The following
What is the procedure for proving a missing or lost Will?
What is the procedure for proving a missing or lost Will? Practice Note: Lost Will procedure explains what steps maybe taken where: the Will cannot be found and a copy/draft is available, the Will cannot be found and there is no copy available but there is evidence of content of the Will when executed, the original Will is held abroad, the Will is believed to held by an individual who will not release it and the Will was lost but is later found. The application for the order If the original Will or codicil still cannot be found and is therefore lost or has been accidentally destroyed, probate of a draft, copy or reconstruction of the Will or codicil may be obtained provided an order for leave to prove it is first obtained. The procedure for the order is set out in rule 54 of the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024 (NCPR 1987, SI 1987/2024, r 54). The same procedure is used where probate of an oral Will is sought. The application
Can a limited company appoint a second trustee in a transfer deed to overreach a Form A restriction registered against a title?
Can a limited company appoint a second trustee in a transfer deed to overreach a Form A restriction registered against a title? This Q&A assumes that the company is the sole registered proprietor, it holds the legal estate on trust and that it is proposing to sell the whole of the property to a third party for valuable consideration. Broadly, the doctrine of overreaching enables purchasers (which includes tenants and mortgagees) in good faith for money or money’s worth to rely solely on the legal title. In the case of registered land, this means the entries entered on the register of title, as it records ownership of the legal estate and is not concerned with equitable interests. (See: sections 2, 27 and 205(1)(xxviii) of the Law of Property Act 1925 and City of London Building Society v Flegg). A buyer of a legal estate in land from trustees will not be affected by any of the trusts on which the land is held if the purchase price is paid to all the trustees (of whom there must be at least two) or to a trust corporation. Payment of the price in this manner means that the interests of the beneficiaries are said to be ‘overreached’. This is commonly known as the 'two trustee' rule. Where there is a restriction in the register, it prevents the registration of any
If there is more than one page of a Will but the pages are bound together in the wrong order is the Will valid?
If there is more than one page of a Will but the pages are bound together in the wrong order is the Will valid? The requirements for a valid Will in accordance with Wills Act 1837, s 9 (as amended by the Administration of Justice Act 1982) are set out in the Lexis®PSL Practice Note: Validity of Wills—form of Will. In short, a Will may be in any form, provided: • it is in writing, and signed by the testator, or by some other person in his presence and by his direction • it appears that the testator intended by his signature to give effect to the Will • the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and • each witness either: ◦ attests and signs the Will; or ◦ acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary In addition, the testator's intention that the document should operate after their death must be fixed and final. It follows from the above that
How should the person dealing with an estate proceed where they have a copy of the Will but cannot find the original? What should be put in the oath on application for the grant of probate?
How should the person dealing with an estate proceed where they have a copy of the Will but cannot find the original? What should be put in the oath on application for the grant of probate? The person who must take the requisite action is the person(s) who are the executor(s) appointed under the (copy) Will. Attempts to find the original Will On an application for probate the original Will needs to be submitted to the Probate Registry. There is no central register of Wills in the UK and the question raises a common problem that it is often difficult for the named executor to ascertain the whereabouts of the original Will. The following efforts to trace the original will need to be taken: • a thorough search of all the paperwork of the deceased • enquiries of relatives as to the whereabouts of any Will • contacting the solicitors or will writers who drafted the Will. If the solicitors firm no longer exists enquiries should be made with the Solicitors Regulation Authority which might have taken over the papers of the firm • asking the deceased’s bank if they have the Will • search the Central Probate Registry in London Procedure when original will lost If the
Can the parents-in-law of a beneficiary witness a Will without invalidating the gift to the beneficiary?
Can the parents-in-law of a beneficiary witness a Will without invalidating the gift to the beneficiary? This Q&A covers the position in relation to the validity of a gift to one particular beneficiary and does not consider the formal validity of Wills generally. Valid witnesses If a beneficiary, or their spouse or civil partner, witnesses the Will, the gift to that beneficiary is void. However, the Will itself would remain valid and operate as if that beneficiary had predeceased the testator. It is important to consider not only the beneficiaries of legacies and residuary gifts
Where a council is buying back residential property and the seller is a company incorporated in Nigeria, what steps are required for the Land Registry to accept an application for registration of the transfer?
Where a council is buying back residential property and the seller is a company incorporated in Nigeria, what steps are required for the Land Registry to accept an application for registration of the transfer? This Q&A assumes that the Nigerian company is already the registered proprietor of the property that is being purchased. If, as is assumed for the purposes of this Q&A, an overseas company is already the registered proprietor of an estate or charge that is being acquired, it follows that it must have satisfied the requirements of HM Land Registry Practice Guide 78 (PG 78) in achieving that registration. On a subsequent sale by an overseas company, nothing in PG 78 (or, indeed, generally) requires a buyer (in terms of
What issues do I need to consider if I am proposing to have my loan documentation signed electronically?
What issues do I need to consider if I am proposing to have my loan documentation signed electronically? This Q&A sets out some of the main issues which practitioners should consider when proposing to have documents signed by electronic means in a loan transaction. The issues are discussed in the context of the suggested best practice guidance set out in the practice note: Execution of a document using an electronic signature (the JWP Practice Note), issued by a joint working party of the Law Society Company Law Committee and the City of London Law Society Company Law and Financial Law Committees (the JWP) in July 2016. The JWP Practice Note can be accessed here. For more information on what constitutes an electronic signature and the applicable legislative framework, see Practice Note: Electronic signatures and for more information about using electronic signatures in loan transactions, see: Execution formalities in loan transactions and Arranging execution of the finance documents in a loan transaction—Use of electronic signatures. When a practitioner is considering the use of e-signatures in a transaction, it is important to consider the following issues: Suitable electronic signing platform It is necessary for a suitable electronic signing platform to be used to obtain e-signatures. The principal concern here will be security, with practitioners needing to ensure that the details of the transaction in question remain confidential, but also that only
What are the legal requirements for dating Wills and trust documents?
What are the legal requirements for dating Wills and trust documents? There is no legal requirement that a Will must be dated, unless it appoints guardians of a minor and the lack of a date or the inclusion of a wrong date will not invalidate a Will (Corbett v Newey). However, as well as establishing that the Will has been duly executed in accordance with section 9 of the Wills Act 1837, it is necessary to establish the date of the Will sufficiently clearly to be certain of proving the last Will of the
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Private Client weekly highlights—24 February 2022
This week’s edition of Private Client highlights includes: (1) Royal Free London NHS Foundation Trust v AA, in which the Court of Protection ruled on jurisdiction and the suitability of the Official Solicitor as litigation friend; (2) The response of the Department of Health and Social Security to the Lords report on social care reform; (3) Hyman v HMRC, where the Court of Appeal confirmed that land that is or forms part of the garden or grounds of a dwelling is not limited by a requirement that it is for the reasonable enjoyment of the dwelling; (4) R v R, where the court set aside a decree absolute on grounds of forgery; (5) Rea v Rea, in which the Court of Appeal found that a trial on the validity of a Will was unfair; (6) Punter Southall Governance Services Ltd v Benge, which concerned a Trustee’s application for approval of its decision-making on the distribution of death benefits; (7) The legal issues arising out of the closure of the Tier 1 (Investor) visa route; (8) Re B (a child), where the Family court allowed a mother to accept a French inheritance on her child’s behalf; (9) the Finance Act 2022 which received Royal Assent on 24 February 2022, and (10) The Law Society’s probate service update.
Banking & Finance—July to September 2021 case round-up
Banking & Finance analysis: This News Analysis provides a summary of the cases we have alerted in Lexis®PSL Banking & Finance from July to September 2021.
Property weekly highlights—23 September 2021
This week's edition of Property weekly highlights includes: the latest on the impact of the coronavirus (COVID-19) pandemic, changes to some of the CPSEs, a case on effective execution by a company and the latest on the Residential Property Developer Tax.
Corporate weekly highlights—23 September 2021
This week's edition of Corporate weekly highlights includes the publication of four consultation responses by joint working parties of the Company Law Committees of the City of London Law Society (CLLS) and the Law Society, concerning: FCA consultation paper 21/21 on changes to the listing regime (Primary Markets Effectiveness Review); the BEIS Draft Statement on the Secretary of State’s power to call in acquisitions under the National Security and Investment Act 2021; FCA consultation paper 21/18 on the extension of the climate-related disclosure regime to standard listed companies; and the Law Commission’s consultation on corporate criminal liability reform. Other developments include the FRC’s thematic review of companies’ going concern and viability statements, and the government’s dematerialisation of shares proposal (enabling companies to issue shares without paper share certificates).
In-house Advisor weekly highlights—23 September 2021
Welcome to this week’s edition of the In-house weekly highlights, a curated summary of news analysis and new content from across the legal landscape. These highlights focus on key risk & compliance, commercial, corporate, information law and employment developments that will be relevant to most in-house lawyers.
Commercial weekly highlights—23 September 2021
This week’s edition of Commercial weekly highlights includes: new guidance from the Department for Business, Energy & Industrial Strategy and the Competition and Markets Authority (CMA) to support UK internal market functioning, analysis of the judgment in Mars Capital Finance Ltd v Hussain on the due execution of real property documents by a company, the CMA’s new green claims code on environmental claims, new guidance on advertising in-game purchases, and the publication of a list of organisations eligible for UK BCRs by the Information Commissioner’s Office.
Banking and Finance weekly highlights—23 September 2021
This week's edition of Banking and Finance weekly highlights includes: (1) ICE Benchmark Administration launches RFR indexes for the US Dollar, Euro and Japanese Yen; (2) The Ministry of Justice establishes a new expert industry working group to increase confidence and security in electronic signatures and other means of legally executing documents; and (3) HM Treasury announces £10bn raised by UK’s first green gilt.
Property Disputes weekly highlights—23 September 2021
This week's edition of Property Disputes weekly highlights includes: an extension to the ‘relevant period’ during which revised periods of notice must be given to recover possession of residential properties in Wales, a review of the new temporary restrictions on the presentation of winding up petitions from 1 October 2021, a High Court case on the effect of registration of a real property disposition where the agreement for the disposition may have been unenforceable and an update from the Law Commission on its 14th Programme of Law Reform.
Private Client weekly highlights—23 September 2021
This week’s edition of Private Client highlights includes: (1) An update on how the new Liberty Protection Safeguards will work in practice when they replace the Deprivation of Liberty Safeguards in 2022; (2) The Court of Protection holds that an advance decision made 20 years ago is invalid and that it is in the best interests of a Jehovah’s Witness to receive a life saving blood transfusion; (3) Analysis of the social care reforms in England and how will they work in practice; (4) Family proceedings court fee increases from 30 September 2021; (5) Ketley v Revenue and Customs Commissioners, which highlights the importance of acting and proving that the taxpayer has acted proactively and promptly when making late notifications to HMRC; (6) The Charity Commission publishes Charity Fraud Awareness Week 2021 information; (7) Goodwin v Avison, where the defendants were held liable for the claimant’s costs after the late withdrawal of a Will challenge; (8) The Scottish OPG publishes changes to the professional guardianship scheme, and (9) Mars Capital Finance Ltd v Hussain, which held that once a real property disposition to which a company is party has been registered, any issue as to due execution by the company of the contract for the disposition ceases to be relevant.
Due execution by company of real property documents (Mars Capital Finance Ltd v Hussain)
Commercial analysis: Once a real property disposition to which a company is party has been registered, any insufficiency of execution for the company of the contract for the disposition ceases to be relevant. (Obiter), if it had been necessary to decide the point, the court would have held that an unwitnessed signature by a single director of the contract for the disposition was sufficient to satisfy the Law of Property (Miscellaneous Provisions) Act 1989 (not following a dictum of Mr Justice Lewison in Redcard Ltd v Williams). Written by Nicholas Davidson QC at 4 New Square.
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