Execution in Scotland

Executing documents

Private Client lawyers work on a large variety of matters, many of which involve written agreements that will need to be executed by the parties. This subtopic will provide a resource for Scottish practitioners and for those practising in England and Wales involved in cross-border transactions as it summarises the law, guidance and practice relating to execution of documents in Scotland, including in particular:

  1. how valid execution is achieved by subscription

  2. the importance of witnesses in obtaining self-proving status for the execution

  3. the requirements of the Scottish property registers

  4. the delivery required for a document to be effective

  5. counterpart execution

  6. valid electronic execution and the advanced electronic signature

The Practice Note: Execution of documents under Scots law, summarises the law and practice relating to the execution of documents under Scots Law including which types of contracts or obligations must be recorded in writing and how valid execution

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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