Document composition and formats - Drafting contracts, wills...

Learning Outcomes

This article covers document composition and formats for drafting contracts, wills, deeds, and other legal instruments, including:

• Distinguishing contracts, wills, and deeds by their purpose, structure, content, and statutory formalities
• Structuring documents with clear parties, recitals/background, definitions, operative clauses, schedules, and execution blocks to promote clarity and enforceability
• Applying formal requirements precisely, such as writing, signing, witnessing, attestation, and delivery, so instruments are valid
• Identifying and advising on common pitfalls (missing essential terms, incorrect witnessing, improper dating, wrong parties, inconsistent definitions) and how to avoid them
• Assessing when electronic execution is permitted and when it is not, and managing practical constraints for in-person witnessing, registry practice, and counterpart signing
• Addressing ambiguous language or defective drafting and knowing when rectification or severance may be available under the relevant legal framework
• Managing execution logistics and authority of signatories, including counterparts, dating conventions, Mercury signing approaches, and company execution wording under CA 2006, s.44

SQE2 Syllabus

For SQE2, you are required to understand the composition, structure, and formal execution of contracts, wills, deeds, and related legal instruments, with a focus on the following syllabus points:

• Distinguishing contracts, wills, deeds, and other instruments in purpose, content, execution, and statutory formalities.
• Structuring documents clearly: titles, dates, parties, recitals/background, definitions, operative clauses, schedules, and execution blocks.
• Applying Law of Property (Miscellaneous Provisions) Act 1989 requirements: s.2 (contracts for sale/disposition of land) and s.1 (execution as a deed).
• Executing deeds by individuals and companies (Companies Act 2006, s.44): signatures, witnessing, and delivery; use of common seal where applicable.
• Understanding attestation and witnessing rules for wills (Wills Act 1837), including void gifts to witnesses and the role of attestation clauses.
• Using plain, intelligible wording and avoiding ambiguity (Consumer Rights Act 2015 for consumer-facing terms), with effective definitions and consistent drafting.
• Understanding electronic signatures: when permitted for contracts and deeds, practical constraints for witnessing, and registry practice (e.g., HMLR).
• Identifying common pitfalls (e.g., missing essential terms, wrong parties, misdating, inconsistent definitions) and remedies (e.g., rectification of a will, severance of unfair terms).
• Managing execution logistics, including counterparts, dating, Mercury signing approaches, and authority of signatories.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the minimum requirements for a will to be valid under English law?
2. True or false: A contract for the sale of land must be made in writing and signed by both parties to be enforceable.
3. Can all legal instruments be executed by electronic signature? Explain.
4. What is the effect of omitting the attestation clause when drafting a will?

Introduction

Legal drafting is foundational for every area of practice assessed in SQE2. Whether preparing contracts, wills, or more specialised deeds or legal instruments, the structure, format, and compliance with statutory formalities are tested both in skills stations and case scenarios. Below, we look at the essential components, mandatory requirements, and practical drafting points for the most commonly assessed legal documents. Beyond ticking formalities, the drafter must use plain, intelligible language, set obligations clearly (who, what, when, how), and avoid vagueness or inconsistency. Courts focus on the words the parties actually used; clarity and precision are central to enforceability.

Document Types: Contracts, Wills, Deeds, and Instruments

In practice, the three most frequently encountered legal instruments are:

• Contracts: Used for agreements creating legal relations and obligations.
• Wills: Documents disposing of property on death.
• Deeds: Documents requiring execution with particular formality, used for some transfers, powers of attorney, and trust declarations.

Each has specific composition rules and statutory requirements. Some instruments (e.g., declarations of trust, powers of attorney, transfers of land) must be made by deed to be valid. Consumer contracts require clear, prominent terms, drafted in plain, intelligible language to avoid unfairness.

Key Term: contract
A legally enforceable agreement between two or more parties, usually requiring offer, acceptance, consideration, and intention to create legal relations.

Key Term: deed
A document executed with required formalities, including signing and witnessing, which is intended to take effect as a deed and creates obligations without the need for consideration.

Key Term: will
A document by which a person (testator) declares intentions for property distribution on death, executed with strict statutory formality.

Key Term: attestation
The act of witnessing a signature and then signing as witness, usually with a statement confirming awareness that the document is a will or deed.

Key Term: formalities
Legal requirements as to the manner, witnesses, and content that must be satisfied for a document to be valid and enforceable.

Structure and Content of Legal Documents

General Structure

All formal legal documents should follow a logical arrangement for clarity and enforceability. Typical elements include:

1. Title or Heading
   Clearly states the document type (e.g., "Agreement for Sale," "Will of John Smith," "Deed of Trust").

2. Date
   Inserted at the top or in the opening recital.

3. Parties
   Full legal names, addresses, and status.

4. Recitals (if needed)
   Short "background" section setting out factual matters or context.

5. Operative Provisions
   The business of the agreement (e.g., terms, obligations, gifts, powers).

6. Signature/Execution Blocks
   Spaces for signature and, where required, witnessing or attestation clauses.

7. Schedules/Appendices
   Used for detailed lists (e.g., property, assets, definitions).

Not every instrument will contain every element, but contracts and wills must always include parties and operative provisions. Recitals should only set out background facts or the parties’ intentions, not additional legal obligations. Definitions should be used consistently and placed where they are easy to find (usually early in the operative part). Avoid archaic language and long, complex sentences; favour active voice and clear drafting, especially for consumer-facing terms.

Contracts: Composition and Execution

Most contracts can be made orally, but significant exceptions apply. To avoid disputes and comply with statutory requirements:

• Ensure contracts subject to the Law of Property (Miscellaneous Provisions) Act 1989 are in writing and signed where applicable (e.g., sale or other disposition of an interest in land, s.2).
• Place all expressly agreed terms for a land contract into a single document or in exchanged documents; later additions that are not included may be ineffective. Use “subject to contract” clearly when negotiating to avoid accidental contract formation, and remove it only when the document is intended to be binding.
• Include essential terms: parties (using correct legal names and registration numbers for companies), the subject matter, price/consideration (if required), timing, and signatures. Avoid ambiguity in time and date clauses (e.g., specify “on or before 3 December 2026” and time zone).
• Use clear definitions and consistent terms; avoid ambiguous connectors (“and”, “or”, “and/or”) by tabulating options where necessary.
• Check statutory “cooling-off,” distance selling, or consumer rights that may impose format, content, or cancellation clauses, and ensure consumer terms are prominent, fair, and transparent under the Consumer Rights Act 2015.
• For companies, check the authority of signatories and execution method (Companies Act 2006, s.44). If relying on board authorisation, record resolutions and ensure execution wording states “executed by [company name].”
• Be cautious with electronic execution: confirm counterparties’ acceptance, method, and any registry requirements (see Electronic Signatures below). Maintain clear records of versions, dating, and counterparts.

Exam Warning

Contracts for the sale or disposition of an interest in land must be in writing, containing all agreed terms and signed by all parties to be enforceable (Law of Property (Miscellaneous Provisions) Act 1989, s.2). Oral agreements are void.

Common drafting pitfalls include vague obligations (“should”) rather than clear mandates (“shall”), imprecise time wording (midnight vs 23:59; time zones; daylight savings), and inconsistent defined terms. Use schedules for technical detail; keep the operative clauses concise and readable.

Wills: Formality and Content

Wills must meet strict statutory formality for validity (Wills Act 1837):

• Must be in writing.
• Signed by the testator (or another at their direction, in their presence).
• The signature is made or acknowledged in the presence of two witnesses, present at the same time.
• Each witness must sign or acknowledge their signature in the presence of the testator.

Further essentials and best practice:

• Capacity and intention: ensure the testator has capacity and intends the document to be a will. Include a revocation clause to revoke earlier wills.
• Knowledge and approval: use clear language, avoid unusual dispositions without explanation, and consider an attestation clause confirming due execution.
• Beneficiaries and executors: identify beneficiaries precisely, include substitutional gifts, and appoint executors. Consider guardians for minor children and a residuary gift to avoid partial intestacy.
• Witnesses and gifts: gifts to a witness or a witness’s spouse/civil partner are void (the will itself is still valid). Witnesses should be independent adults with no benefit under the will.
• Codicils: use for minor changes; execute with the same formalities as wills.
• Mistakes: courts may rectify a will to reflect the testator’s intentions where a clerical error or a failure by the drafter to understand instructions caused the mistake, and may admit extrinsic evidence to resolve ambiguities (Administration of Justice Act 1982, ss.20–21). Rectification cannot cure non-compliance with execution formalities.
• Remote witnessing: temporary pandemic changes permitting video witnessing ended; physical presence is now required.

Key Term: testator
The person making a will.

Key Term: attestation clause
A statement confirming how the will was signed and witnessed, to facilitate proving its validity.

Clarity is essential. Avoid double negatives and uncertain modifiers, and ensure each gift is sufficiently certain in subject and object. Set out substitutional gifts and survivorship periods where intended.

Deeds: Requirements

Certain transactions (e.g., transfers of land, powers of attorney, some trust declarations) require execution as a deed under s.1 of the Law of Property (Miscellaneous Provisions) Act 1989. Key requirements include:

• The document must make clear it is intended to be a deed (e.g., “executed as a deed”).
• An individual must sign in the presence of a witness who also signs (witness should be independent).
• A company may execute a deed under Companies Act 2006, s.44:
  • By applying a common seal (if it has one) in accordance with its articles; or
  • Without a seal, by signature of two authorised officers (two directors, or a director and the company secretary), or a single director in the presence of a witness, with wording stating it is executed by the company.
• Delivery: the deed must be delivered (intended to be bound), which may be presumed on signature in many cases unless otherwise indicated.
• No consideration is required for deeds.

Key Term: delivery
The act by which a person executing a deed indicates an intention to be bound by it; often presumed on execution unless the contrary is shown.

Additional points:

• Presumption for purchasers: in favour of a purchaser, a document purporting to be signed by the appropriate officers (or a director in the presence of a witness) is deemed duly executed by a company.
• Foreign companies may execute in any manner permitted by their local law; ensure the document states execution by the company and that local authorisation is proved where required.
• Use precise execution blocks, identify witnesses clearly (name and address), and avoid having beneficiaries or related parties witness deeds.
• Maintain clear version control and avoid attaching pre-signed signature pages to changed text without express written authority and identification (e.g., Mercury guidance).

Electronic Signatures and Execution

Electronic signatures are permitted for many documents, but not all. Wills cannot be executed electronically; most simple contracts and some deeds can be, if the method is reliable and intended to authenticate.

For deeds executed electronically:

• The witness must be physically present to witness the signatory adding their electronic signature, and must sign (electronically or in wet ink) as witness at that time.
• Confirm counterparties and any registry (e.g., HM Land Registry) requirements. Land registration practice may mandate specific e-signature types or processes and, for certain instruments, wet-ink signatures.
• Avoid circulating only signature pages detached from the final text; sign complete documents or follow an agreed process with clear authority and document identification (e.g., title, parties) to prevent misuse of signature pages.

Ensure the chosen platform preserves integrity (e.g., prevents text extraction/changes), records time stamps, and captures IP/location where useful. Always confirm lender, insurer, and registry acceptance of e-signatures for the particular instrument.

Key Term: electronic signature
Any electronic method that indicates intent to sign, from typed names to secure digital methods, provided legal requirements are met.

Consequences of Failing to Comply with Formality

Where statutory requirements are not met, the document is usually void or unenforceable. Correction may require a new valid document or, in some circumstances:

• For wills, rectification or admission of extrinsic evidence may cure drafting mistakes or ambiguity, but not non-compliance with signature/witnessing.
• For land contracts, part performance is no longer a saving doctrine; however, a constructive trust or proprietary estoppel may arise on exceptional facts, potentially supporting equitable relief despite non-compliance with s.2.
• For deeds, absence of clear “deed” wording, lack of a witness (for an individual), or failure to deliver may prevent enforceability.

Maintain rigorous checks for parties’ legal names/status, execution method, witnesses, dates, and cross-references. Ambiguities in wording, misnumbered clauses, and inconsistent definitions are common causes of dispute; courts will not rewrite bargains to achieve business common sense if the language is clear but imprudent.

Worked Example 1.1

A client signs a typewritten will but only asks one friend to act as witness. Later, another friend signs the will in a different room. Is the will valid?

Answer:
No. Both witnesses must be present at the same time when the testator signs or acknowledges their signature. The will fails the Wills Act requirements.

Worked Example 1.2

Harriet and Lucas agree orally to sell a shop premises for £250,000, shake hands, and Lucas pays a deposit. No written contract is signed.

Answer:
The contract is void. The sale of land must be in writing and signed by both parties; oral agreements for land are not enforceable.

Worked Example 1.3

A will leaves £10,000 to the testator’s neighbour. The neighbour and the testator’s nephew witness the will. What is the effect on the gift and the will?

Answer:
The gift to the neighbour is void because a witness (or their spouse/civil partner) cannot benefit under the will, but the will itself remains valid.

Worked Example 1.4

A private company executes a deed signed by a single director without a witness. Is it valid?

Answer:
Not if relying on signature by a single director. Under Companies Act 2006, s.44, either two authorised officers must sign, or a single director must sign in the presence of a witness (who also signs). Absent a witness, single-director execution is defective.

Revision Tip

Focus on the exact statutory wording for execution formalities. For land contracts, ensure all agreed terms are in the signed written document; for deeds, confirm execution wording, witnessing, and delivery; for wills, check physical presence of both witnesses and consider an attestation clause. Manage version control, dates (avoid ambiguity around midnight and time zones), and parties’ legal identities (including company numbers).

Key Point Checklist

This article has covered the following key knowledge points:

• Legal documents such as contracts, wills, and deeds have prescribed formats and required formalities; structure documents with clear parties, recitals, definitions, operative clauses, schedules, and execution blocks.
• Contracts for land must be in writing, contain all expressly agreed terms, and be signed by all parties; “subject to contract” prevents accidental formation while negotiating.
• Wills must be written, signed by the testator, and properly witnessed in physical presence; gifts to witnesses (or their spouses/civil partners) are void, but the will remains otherwise valid.
• Deeds require explicit “executed as a deed” wording, attestation, and delivery; companies execute under CA 2006, s.44; no consideration is required.
• Electronic signatures are allowed for most contracts and some deeds with an in-person witness; never for wills; check registry and lender practice for registration.
• Avoid ambiguity: specify times and time zones, use active voice, tabulate alternatives rather than ambiguous “and/or”, and use consistent defined terms.
• Non-compliance usually renders a document void; limited remedies exist (e.g., will rectification for drafting errors; proprietary estoppel in exceptional land cases), but they do not cure defective execution.
• Practical signing: circulate complete documents, control signature pages, identify the agreement clearly, and obtain written authority before attaching any signature pages.

Key Terms and Concepts

• contract
• deed
• will
• attestation
• formalities
• testator
• attestation clause
• electronic signature
• delivery