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

Learning Outcomes

By the end of this article, you will be able to identify the essential legal requirements and best practices for composing, formatting, and executing contracts, wills, and other legal instruments. You will know how to structure clear documents, apply statutory formalities, distinguish between different types of legal instruments, and spot common exam pitfalls in this area. This will equip you to handle SQE2-style legal drafting and document-based questions with confidence.

SQE2 Syllabus

For SQE2, you are required to understand the composition, structure, and required formality of key legal instruments. In your revision, ensure you can:

• Distinguish between contracts, wills, deeds, and other instruments in terms of content, execution, and statutory requirements.
• Recognise the minimum content and structure for contracts and wills, including recitals, parties, operative clauses, and signature blocks.
• Explain the statutory requirements for validity and execution, including witnessing, attestation, and registration where relevant.
• Advise on common practical pitfalls and remedies if formalities are not followed.

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.

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.

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.

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 of land).
• Include essential terms: parties, subject matter, consideration (if required), and signatures.
• Watch for statutory "cooling-off," distance selling, or consumer rights that may impose format, content, or cancellation clauses.
• For companies, check the authority of signatories and necessity for company seals or board resolutions, as required.

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.

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.

Additional best practice includes attestation clause wording and full correct identification of gifts, beneficiaries, and executors.

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.

Deeds: Requirements

Certain transactions (e.g., transfers of land, powers of attorney, some trust declarations) require execution as a deed:

• The document must make clear it is intended to be a deed (e.g., "executed as a deed").
• Must be signed by the individual in the presence of a witness who also signs.
• Must be delivered as a deed. Delivery occurs when the person intends to be bound.
• No consideration is required for deeds.

Company and partnership deeds require specific formalities under the Companies Act and relevant regulations.

Electronic Signatures and Execution

Electronic signatures are permitted for many documents, but not all. Wills cannot be executed electronically; most contracts and some deeds can, if the method is reliable and intended to authenticate. Always check client needs, document purpose, and any registry or counterparty requirements.

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 rare cases, application to the court.

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.

Revision Tip

Focus on the exact statutory wording for execution formalities. Examiners frequently test awareness of the consequences for non-compliance.

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.
• Wills must be written, signed by the testator, and properly witnessed; missing witnesses or signatures usually render the will invalid.
• Contracts for land transfer must be in writing and signed by all parties to be enforceable.
• Deeds require explicit language and attestation; consideration is not necessary but delivery is essential.
• Statutory requirements override party intentions or best efforts—'almost' compliant is not compliant.
• Electronic signatures are allowed for most contracts and some deeds; never for wills.

Key Terms and Concepts

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