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A Deed of Assignment can be used to assign ownership of a policy to a new person or organisation.

For advice speak to your financial adviser .

Drafting a Deed of Assignment

I have been instructed to prepare a Deed of Assignment in respect of two investment bonds put into effect in 2015. It is now clear they were incorrectly set up by the financial adviser, so that the Trustee has the benefit personally, rather than holding as Trustee. My question is, do I need to make any reference to this in the Deed?

Changes to investment bonds is typically undertaken with the provider. They usually have they’re own paperwork.

I’d contact the provider first, I’m assuming you wish to make changes to the beneficiaries.

Richard Bishop PFEP

Hi Richard.

Thanks for responding. In this case its the insurance company that referred the matter to us, I can only think its perhaps because it was their mistake initially and they are paying our costs that they have asked us to do it.

Gail Weston

Is this a bigger issue than just drafting a deed of assignment?

If the 2015 assignment effectively gave the bonds to the intended trustee personally, might not the assignment into trust be considered a settlement by them for IHT purposes, etc.?

If the 2015 assignment had the wrong effect I wonder if it should be remedied by an application to court for rectification. If the original transaction is not rectified, the mere completion of a new deed of assignment may fully utilise the “trustee’s” IHT nil rate band, significantly inhibiting their ability to conduct any IHT planning themselves. Should they die within 7 years of the new deed, their estate will be penalised if their nil rate band is no longer available as a result of what happens now.

I suggest it would be appropriate to contact HMRC before any documents are executed, to see if it will agree to look through the proposed deed to the original intention. This may seem over cautious, but I understand HMRC consistently asserts that it will not accept “rectification” of a mistake without a court order.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Thank you. It was for that reason I thought we must have to do something to show the trustee is not making a settlement personally, but I wondered if the error could somehow be referred to in a Deed of Assignment so that it was clear.

Another member pointed out that a trust doesn’t have to be in writing (other than land) and suggested the legal owner might execute a Declaration of Trust to confirm how she holds the bonds, but making it clear that the trust was established when the bonds were first assigned to her. Could that work? Thank you for responding. I do very little trust work, but I know enough to know when to be wary and I think I might now refer this on to someone else!

Gail Weston WMB Law Ltd

What trusts would she arguably hold the bonds upon? The relevant trusts would have to have been at least ascertainable at the time of acquisition of the bonds. The only one of the vital Three Certainties here seems to have been the subject-matter. It is a stretch to conclude that she originally acquired as trustee unless she did so knowingly as such and beyond a vague understanding (e.g. as a constructive trustee, when it would be a key part of the analysis to be able to identify the beneficiary also). If it appears so definitively that she took originally as beneficiary, however mistakenly, retrospection is not an option. In law the Trustee is just not a trustee at all it would seem.

The remedy the law provides is rectification which is discretionary, but awarded or denied according to established principle, and subject to evidence about the nature of the mistake alleged. As Paul says, HMRC’s practice is to insist on a court order— but rarely to intervene in the process and to abide by the outcome. This is reasonable because an order will bind all persons interested, including the bond provider, whereas if HMRC just took a unilateral view (second-guessing the court’s discretion) that in theory might be successfully challenged and it might not even bind the taxpayer.

A bond provider will be reluctant to pay out anyone other than the apparent legal owner or their assignee, to obtain a good discharge. Asserting that the bonds are really held on some trust is likely to spook them. Here the matter is referred by them and, without prejudice as to culpability, indicates some kind of notice of a possible trust with at least a resultant strong doubt on their part about whom to pay. An assignment apparently fixes that but is not retrospective. It still involves their taking a view that the “Trustee” has the right to act as assignor but the assignee may be the only person or persons who might otherwise contest her personal entitlement.

It is not clear whether there is recourse against the financial adviser or bond provider (or admission of liability or creditworthiness) or precisely whose mistake is alleged to be operative and why, or the value at stake. Indeed it is not clear who is your client and what are your instructions. The bond provider may be paying and be the client for the mechanical drafting but it seems the “Trustee” is the likely client for the advice as the intending assignor. Is there a conflict?

Jack Harper

Thank you for your response. Sorry, I probably should have given more detail. The Trustee is my client. She was referred to me by a Wealth Management Company, who are paying her costs. She holds on the trusts of her late sisters Will for minor beneficiaries and took advice from them the company on where to invest. The trust funds were subsequently invested in two Bonds with that Company, but the clients new adviser has now spotted that apparently the Bonds were set up as though she herself was the owner and beneficiary, instead of holding as Trustee.

In those circumstances there must be a strong inference that she is a constructive trustee of the bonds. She has used trust funds to subscribe for the bonds. Equity would not permit her to hold them otherwise than on the existing Will trusts. If she is the sole trustee an assignment is somewhat over the top. Although you can assign to yourself in a different capacity here she would be a trustee on both sides, constructive as assignor and appointed as assignee. I suggest all she needs is to receive positive legal advice that she needs to do nothing and why. Even appointing a co-trustee just for a meaningful assignment seems excessive if the Will trust is not one of land and if is not considered desirable otherwise e.g. to secure trusteeship succession.

In agreement with Jack, as the individual knows the terms on which they are supposed to be holding the bonds (here, the trusts which are set out in the Will), the individual can execute a Declaration of Trust stating that. Similarly, I would recommend a second trustee - indeed, the terms of some Will trusts require there to be two trustees for the exercise of certain powers. If a second trustee is going to be added, the Deed of Assignment (from “Trustee A” to “Trustee A and Trustee B” could set out initially that Trustee A holds the bonds on the trusts of the Will, before the assignment to A&B “… to hold on the terms of those trusts…” (or similar). It is worth being absolutely sure that, at the time of the original investment, there was no intention that the bonds (or the funds used to invest in them) should belong beneficially to A. Gail says that this was not the intention, but any evidence of that (eg correspondence, attendance notes, etc) would be useful to keep should the position be queried in the future.

Paul Davidoff New Quadrant

I would only add to Paul’s sound comments and action plan that if she used trust funds to subscribe she would hold the bonds as a constructive trustee even if she had had the actual intention of benefiting personally

Thank you both. That way makes sense to me. There was never any intention of benefitting personally. Until learning otherwise, she believed the trust funds were rightly invested for her nieces. As you suggest I will see what paperwork exists from the end of the administration period and proceed as you suggest.

Many thanks. Gail Weston

Signed, sealed and delivered: the deed is done

Certain types of document are not valid unless they are in the form of deeds. The most common of these include transfers of land, certain leases, mortgages and charges, powers of attorney and appointments of trustees.

In English law, deeds differ from ordinary contracts in a number of respects. First, a deed is enforceable whether or not consideration (i.e. money or value in some other form) is given for the obligations undertaken by the parties to it. By contrast, an ordinary contractual promise made for no consideration is not enforceable. Secondly, the limitation period for action to enforce an obligation arising under a deed is 12 years, double the period for action for breach of an ordinary contract. Finally, an ordinary written contract is effective as soon as it is signed (unless its terms state otherwise), but a deed must be both signed and delivered. It is at the point of delivery that the deed becomes binding and effective. Traditionally, the execution and delivery of a deed was accompanied by much formality. Deeds had to be not only signed but also sealed (originally involving the use of sealing wax, more recently requiring red labels to be stuck onto the document). The parties to a deed had to speak certain words confirming that the deed had not only been signed but was also being delivered so as to become effective. Over time, the requirement for a spoken confirmation of delivery fell away. Instead, the parties simply had to show an intention to be bound by the deed. This intention could be shown by action rather than words, for example by a party doing something that the deed obliged it to do (such as handing over the deeds to land or the keys to a property). In the case of companies, the law laid down a presumption that when a company executed a deed, it also intended it to be immediately delivered unless a contrary intention could be proved (now section 46(2) Companies Act 2006). By 1990, even the red seals or stickers became unnecessary. Instead, the law imposed a "face value requirement", in other words a deed had to make clear on its face that it was a deed. For example, the words "executed as a deed" in the document would suffice. Companies no longer had to use a common seal to execute deeds, but could instead have deeds signed by two directors or a director and company secretary. Moving forward, since 6 April 2008, only one director needs to sign a deed for a company, so long as the signature is duly witnessed. Although this gradual reduction in formality and ritual was welcome, a deed must still be delivered in order to become binding. However, for most practical purposes, an executed deed can now be treated as delivered unless there is something to demonstrate that the parties do not intend delivery to take place. This means that in practice, deeds and ordinary contracts are often treated in exactly the same way. In both cases, it is often assumed that the document does not come into force unless and until it is dated. This assumption is incorrect. Once a deed has been executed and delivered, it is binding and cannot be revoked unless either the parties agree to this (by way of a further deed) or there is provision in the deed permitting revocation by other means. The consequences of this can be seen from the decision of the High Court in Silver Queen Maritime Ltd v Persia Petroleum Services plc [2010] EWHC 2867 QB. Two companies were in litigation over failures to make payments for services. Negotiations brought about a settlement, the terms of which were set out in a settlement deed. The settlement deed did not contain an express provision allowing it to be revoked. The deed was executed by the defendant and emailed to the claimant's solicitors. The email said nothing about delivery of the deed. The defendant subsequently discovered that certain material facts had not been disclosed by the claimant during the settlement negotiations. The defendant's solicitors therefore notified the claimant's solicitors (on the morning following the sending of the settlement deed by email) that the defendant was no longer prepared to be bound by the settlement deed. The claimant then duly executed the deed and it was returned (undated) to the defendant's solicitors. The claimant indicated to the defendant that the claimant regarded the deed as binding. This was disputed by the defendant. There were then further settlement discussions in which the claimant indicated that it would accept a lower amount than that specified in the deed provided this amount was paid in full within a few weeks. The defendant alleged that this further offer meant that the claimant could no longer rely on the terms of the settlement deed. The High Court ruled that the settlement deed remained fully enforceable against the defendant. This was unaffected either by the defendant's statement that it was no longer prepared to be bound by the deed or the subsequent discussions between the parties. The court held that a deed could be delivered in the following ways:

• unconditionally: the deed takes effect immediately and is irrevocable;
• in escrow: the deed is irrevocable but does not take effect unless and until the relevant escrow conditions are satisfied; or
• passed to an agent who was instructed to deal with it in a particular manner: the deed is revocable and does not take effect unless and until the agent complies with those instructions, at which point the deed is delivered and takes effect.

The court held that the settlement deed had been delivered in escrow, being conditional only on being executed by the claimant and returned to the defendant's solicitors. The defendant had not, in executing the deed and instructing its solicitors to send it to the claimant's solicitors for execution, indicated that it reserved any right to withdraw from the settlement. Nor did the terms of the deed itself permit such a withdrawal. The absence of a date from the document was irrelevant, as the correspondence between the parties and their solicitors clearly showed when delivery took place. For the purposes of section 46(2) Companies Act 2006, the defendant could not prove any contrary intention to the deed being delivered by it immediately on execution. In order to do so, the defendant would have needed to state such an intention openly to the claimant. Accordingly, the settlement deed was presumed to have been delivered when executed. Furthermore, the deed was unaffected either by the alleged non-disclosure of material facts or by the parties' subsequent discussions. The non-disclosure was not in breach of the Civil Procedure Rules, nor was it fraudulent. There was no relationship of trust between the parties such that non-disclosure would amount to a breach of fiduciary duty. The further discussions were merely that; discussions between parties who were, at that stage, in dispute over whether or not a binding settlement had been concluded between them. No further binding agreement had been reached during the discussions. When executing deeds, always remember that what matters most is not signing or dating, but delivery. If you are executing a deed which you do not intend to become fully effective immediately, ensure that you clearly state to the other parties (preferably in writing) any conditions attaching to delivery. In most cases, it will be sufficient for the deed to contain a provision stating that the parties do not intend delivery to take place until they insert the date of the document. At the very least, it can be agreed that a deed executed by one party is sent to the other party on condition that it is held to the order of the first party until both parties agree that it comes into force. In practice, very similar issues will arise in relation to ordinary contracts; always be clear about when they are intended to come into effect, regardless of signing and dating. A specific issue can arise in relation to mortgages and charges executed by companies. Particulars of these must be delivered to the Registrar of Companies within 21 days of being created. If they are not, the security is rendered unenforceable against a liquidator, administrator or creditor of the company. In addition, the company and defaulting directors face fines. It is sometimes overlooked that the 21 day period starts to run as soon as the mortgage or charge is executed (if it is not made clear that delivery is not to occur until later), even if this is done in advance of the document being dated.

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DOCUMENTS NEEDED WHEN BUYING LANDED PROPERTY IN NIGERIA

November 23, 2023 > Nigeria > property

There are certain documents necessary when buying landed properties in Nigeria. These are called land documents and they influence the transfer of title and legal interest in a property. The type of property to be purchase will determine the necessary and required documents. It is important that the buyer carries out due diligence and familiarizes with these documents to avoid acquiring a bad title to the land or falling victim of fraud or deceit. The seller has the obligation of providing some of these documents to effectively validate the transaction.

They include:

• Survey plan/layout
• Land agreement

Purchase receipt

• Certificate of occupancy/ Governor’s consent

This is the evidence of due payment of the purchase of the land. It is given to the buyer by the seller in acknowledgment of receipt of payment for the landed property after the sale of the property. It is also required at the point of registration of the land or property at the lands registry.

Land agreement/ Deed of Assignment

There are different types of agreements in a land transaction; contract for sale of land, sale of land agreement, deed of assignment and other types of deeds. While the contract for sale of land and sale of land agreement usually contain list of terms and conditions agreed to by the seller and buyer, the deed of assignment is the final agreement between the buyer and seller that validly transfers legal title.

It permanently transfers ownership of a landed property from the seller (assignor) to the buyer (assignee) subject to perfection. It also traces the origin of the landed property as well as other relevant conveyance deeds.

Survey plan

A survey plan is a land document that shows the location, size and boundaries of a landed property. It is used for search at the office of the Surveyor-General whether the property is under any government acquisition or committed area.

Certificate of Occupancy

Usually called the C of O. This is the most important document to land owners in a land or property transaction. It certifies the legal ownership status of any land in Nigeria irrespective of possession. It verifies the actual owner of any land in question. It is issued by the state government indicating that the owner who has acquired an interest to the land has been granted a statutory right if occupancy by the Governor of a state in accordance with applicable laws. A subsequent purchaser of the land need not obtain a new certificate of occupancy; all that will be required is a deed of assignment with the governor’s consent. Where the land is situated in a rural area, a customary right of occupancy is issued by the local government chairman.

These documents are crucial in land transactions for the purposes of conducting due diligence search, registration of title document and grant of certificate of occupancy.

Authors: Mr. Adeola Austin Oyinlade and Ms. Silver Obioha

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