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Foreign Document “Traps and Pitfalls” 4 January, 2012

Directors – Reduce your exposure to personal financial risk when you sign a foreign document for your Company

I have mentioned in previous blogs that an English Limited Company is a creature which exists only within the framework of statute law. There are therefore very few grey areas when it comes to deciding whether a Company has or has not taken any particular action.

Some documents must be made by DEED in order to bind a Company. A power of Attorney must be a DEED. Whether or not any document is a Deed is a matter of fact with reference to the Law of England and Wales. The ways in which a Deed is created by a Company, and in which it can be executed, and the words which must be included, are all explained in my other blogs.

I have also explained there that the importance of getting it right is to ensure that the person who signs can avoid any suggestion that the document binds him in person rather than the Company. A company has limited liability under the law. If it goes “bankrupt” in consequence of being unable to meet its financial obligations then this does not mean that the Directors must personally indemnify the creditors of the company – risking the loss of their houses and all of their assets.

The risk of course, is that if a Director or officer of a Company (or worse, someone who is not such an authorised signatory in Law, say a Health and Safety Officer being asked to sign because the subject matter of the document is within the H&S remit)  purports to sign a binding written obligation on behalf of the Company then his intention in doing so is not really relevant. Either the document is right – a Deed as required by the Law – or it is wrong – not a Deed and not binding on the company and not something which the signatory can claim to be merely a Company obligation

So far, nothing new in terms of the points I have blogged. What I do notice increasingly, is that Company Directors understand all of this and are more careful than in the past, to ensure that an English Deed is properly drawn up and does bind the Company and that Board resolutions are made and minuted etc. HOWEVER – all of that seems to go out of the window when the document to be executed is written in Italian, Spanish, or other non-English language and is for use outside UK.

The trouble is that the document which your foreign lawyer prepares for execution by a Company Director will likely be exactly correctly worded to take effect in say, Spain – but will NOT comply with the law of England. For example, in Spain there is no concept of a Deed (as creating a binding obligation irrespective of financial consideration) just as in England we have no recognition of the Spanish tradition of the use of “Public” or “Private” documents.

Try as we may to integrate the various laws and customs of the countries of Europe some differences are irreconcilable. And no-one would expect the documents and practices of say Russia or China to accord with those of England.
Consider a typical Spanish Attestation clause
“El compareciente Don. XY quien firma en mi presencia como Administrador único de ABC Limited y previa lectura e interpretación al Ingles del presente poder a que yo, el Notario, procedí por su tácito acuerdo, se ratifica en su contenido y firma conmigo, de todo lo cual doy fe, así como doy fe de que en otorgamiento de este poder se han observado todas las formas y solemnidades prescritas por la ley del lugar del otorgamiento “
This means literally
“The respondent Mr XY has signed in my presence as Administrator of ABC Limited and after the English reading and interpretation of this power by me the Notary, he proceeded by tacit agreement to ratify it in its content and signed before me, all of which I give faith, and I bear witness that in granting this power have observed all the forms and solemnities prescribed by law of the place where this took place.”

First – Those words do not say that the Document is a Deed. If there are no words making it clear that the paper is a Deed, then in English Law it cannot be a Power of Attorney binding on the Company

Second – The words do not say that the paper is executed by the Limited Company – there is a strong sense that in fact the paper is executed by Mr XY in person (he happening to be the Administrator – a position unknown in English Law)

So what we need in England is for the paper to say

Executed as a Deed by ABC Limited acting by its Director XY who signs in my presence and, after I have read to him the English translation of this power of Attorney confirms its contents on behalf of the said Company and signs it before me, as to all of which I certify, as I also certify that in the execution of this document the appropriate requirements of the place of execution have been complied with

The trouble often is that the foreign lawyer is in a hurry – there may be a deadline – and is unsure of the position if there are any amendments to his text.

My suggested resolution is either to make the document in two languages, with the non-English text as produced by the foreign lawyer but also with the English text written in accord with the English Law. This means that the paper is effectively two different documents in one, rather than one text written in two languages.

If this resolution is not acceptable to the foreign lawyer then my best advice to an English director who has no option other than to execute the foreign paper in order to “get the job done” is that a second paper written in English should be prepared making it clear that a proper Deed fully binding on the Company has been created.

It seems to me that it doesn’t matter a jot that this second paper never actually goes abroad to be the authority relied upon there. Its purpose is to preserve the signing Director’s personal fortune from the liabilities created by the paper he has signed. It will serve its purpose admirably merely by existing!

English Birth, Marriage or Death Certificates may not be copied 15 December, 2011

British Birth Death and Marriage Certificates – No-one may copy them

As an English Notary, I am very often asked to assist people in England who need to produce documentation for use in foreign jurisdictions.

Of course, the requirements of foreign jurisdictions are many and various and so it should not be too much of a surprise to find that occasionally there are contradictions between what is needed abroad – on the one hand – and what is permitted in England – on the other.

One example of this arises when I am asked to produce notarially certificated COPIES of UK documents. These are often needed in order to obtain a visa for work or settlement in a foreign country. In particular in the United Arab Emirates and in Canada (and no doubt in several other countries) the requirement often includes a request for COPIES of birth certificates or of marriage certificates to be produced.

In respect of clients needing to resolve matters after a relative’s death abroad – perhaps wanting to obtain the release of money in a foreign Bank – the requirement often is for a COPY of a death certificate to be notarised and then Apostilled.

However, the rules of Crown Copyright require that no-one may place an official birth death or marriage certificate on a photocopier and press the button. If they do, a Notary Public is certainly not allowed to add a certificate to it.

The actual rule is to be found at

http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/copying-of-birth-death-and-marriage-certificates-and-marriage-registers.htm

and its consequence is that a Notary can only certify an “Original” certificate.

Many of the clients I see have the actual birth certificate which their parents were given at the time of the birth – or the marriage certificate handed to them at their wedding. Although these certificates can only be documents onto which the fact of the birth or marriage registration are copied – so that they themselves are “Certified Copies”, nevertheless I often find that my client considers that these are “original” certificates which have significant sentimental value.

The answer is that new certificates can be purchased direct from the Registry office at any time. If you require a certificate to be Notarised, it is quicker if you contact me and I will purchase the new Certificate/s in readiness for our meeting. The advantage of this that, because I receive it direct from the Government office, I will know that is genuine without need of any further checks and so I can certify it straightaway. Otherwise if my client brings me the certificate, I can only certify it to be genuine after phoning or writing to the Registry for verification.

A Glossary of a Notary’s Jargon 11 November, 2011

A brief glossary of terms used by Notaries
As with any profession, the world of the Notary is full of terms and phrases which are commonplace within it, but which are never used and rarely understood outside it. I hope that it might be helpful for me to explain a few of them. This is only a short list of some usual examples. Please do email me if you have heard from your overseas lawyers with others which are unclear to you – I shall reply to you with an explanation and also include them in future blogs.
Notarise / Add your stamp
These are often the expressions used at a first meeting with a Notary. A prospective client might call me to say that their lawyer abroad needs the paperwork to be taken to a Notary in England for me to “notarise it “ or to “add my stamp”.
Sometimes the client is under the impression that a Notary will stamp any piece of paper whatever is written on it – and that the process should therefore take a minute or so, if that – and the fees should reflect a complete lack of care over a very short time! In fact there is no way that I or any Notary will add a Notarial stamp to a document just because it is put under my nose. If Notaries behaved like that there would be no point in the procedure.
The Notary’s seal of Office (the “stamp”) is not in fact a procedure in itself –the stamp is merely applied to identify the Notary who has made it. It is the certificate which is relied upon abroad, not the stamp. That is to say, I need to write on the paper exactly what truth I am warranting. To do this, I need to investigate the truth, even if it is nothing more than to identify you as the person who has signed a document.
Certify
As explained above, I will not add my stamp to paper unless I am making a certificate – that is, explaining in writing what I am saying about the paper.
Imagine an example – you have a particular qualification – an exam pass, a University degree, a registration as a Doctor with the British Medical Council – and you are applying for a post abroad. Your new prospective employers will want to know that your qualification is genuine and may ask you to get the degree or other certificate “certified” by a Notary.
If you come to me for my stamp to be added, I have explained above that I will not do so without at least taking evidence of your identity. But if I merely stamp it and you then send it off to your new employers, what will they understand my stamp to mean? It might mean only that I have seen you and checked who you are (and so have no idea whether your degree is in fact genuine). It might mean, I have seen you and contacted your university and checked that the degree certificate is genuine. So clearly, I need to set out in writing exactly what my certificate is saying.
I might write “This paper was produced to me today by AB whose identity s/he has proved to me and I have NOT verified that this paper is genuine”. This will be adequate, if the future employer is going to check for themselves with your University – as would be the case with most hospitals abroad in respect of applicants for medical positions. but it would obviously be useless if the employer is relying on me to tell them whether you have a degree. Then I would have to make the necessary checks and write “This paper was produced to me today by AB whose identity s/he has proved to me and I have today verified with the issuing University that this paper is genuine”.
The fact is that a Notary’s “Certification” is not one fixed thing. It is very important to quiz the foreign jurisdiction who say to you “get a Notary to certify your papers” and find out from them EXACTLY what they mean.
Do I have to check they are true or just identify you? Do they require me place my certificate upon the original papers? – which can be very worrying for you if they are irreplaceable – or is it allowed to make the required certificate upon photocopies?
Please remember that when you are told that you need my Certificate, you are being asked for something very specific even though the language used may be extremely vague. The party abroad might mean any one of an almost unlimited number of things and I, as the Notary in England, need to be told of their exact requirements. Since it would be a waste of money to obtain the wrong certificate, it is very important to know what exactly is needed, before we start. Accordingly if you are not certain what is needed you might choose to put me in touch direct with the Foreign Lawyers before our meeting. Whilst this would add to my fees, the expense of preparing an inadequate document and later needing to start all over again would be far greater.
Acknowledge/Witness
Often a foreign lawyer will send a document to England with the requirement that it should be witnessed before a Notary. The word “witness” is generally understood in England – if a Policeman asks for witnesses it would be unusual for someone to come forward to say that although he did not see the incident, he would like to be a witness. We understand – to witness something is to see it happen. Yet plain English seems to vanish time and time again, when the word “witness” is used in connection with a foreign document. I have lost count of the times that I see a client who wants me to witness his paper – but when we meet he produces it already signed by himself (and often by his partner also who has not even attended the meeting) and asks me to sign as witness!
If I do not see you sign, I cannot witness you sign. Of course this is obvious when it is spelt out but nevertheless this is a point which is very often missed in the urgency of meeting deadlines.
Very occasionally, the foreign lawyer requires the document to be “acknowledged” by a Notary and not “witnessed” at all. In this case, instead of writing “Signed in my Presence today by AB” I can write “The signature above was today acknowledged to me by AB” – or sometimes the acknowledgement to me might be by another person who was witness to the original signing.
Many North American States (USA) will admit this procedure, but most other countries of the world will not.
Legalise/Further Legalise/Authenticate
Once I have made my certificate, even then the job is not necessarily over. For many countries, nothing further is required. These include Australia and most of the States of the USA and Canada and the Caribbean countries.
The rest of the world is rather more cautious and it seems to me, with good reason. In this day and age identity theft and fraud is increasing. No doubt there are some criminals capable of preparing a document which looks impressively stamped and sealed – so the difficulty for recipients thousands of miles is to distinguish the document which is really sealed by a Notary from one which is not.
Accordingly, most countries need to see evidence on the document that the Notary is genuine. This is what your foreign lawyers mean, if they ask you to ensure that I get the papers “Legalised” or ”Authenticated”
Apostille/Obtain the Consular Stamp
Before 1961, this further step of legalisation/authentication was dealt with by sending the paper to the Consular office in England of the Country concerned. There must be hundreds of Consular Offices in England. Each has a different address, a different fee (ranging at present from about £3.00 to £400.00 or more for each document), different time scales (a day or so, to several weeks) and different procedures (send a stamped envelope, send a postal order but not a cheque, attend in person at the counter etc). Each one of these Consulates of course can only certify that the paper had been issued me, a Notary, if they have previously recorded full details of my qualification and my signature and seal and updated them regularly. The Consular legalisation system can be a major chore for the Notary, requiring annual registration with all the Consulates, and it is a headache for the Consulates themselves; they must keep details of all of the Notaries, and deal with all the postal and personal attendances for Consular stamps.
Accordingly the International Conference of the Hague in 1961 took place in order to set up a procedure by which different Countries could elect to abandon the Consular authentication procedure and use the system of the “Apostille”. This means that where say a document for Spain was signed in another Country (“C”) then the Notary in C should send the paper not to the Spanish Consulate in C, but to the Foreign Office of C. So, if you sign any document for use in Spain before me in England, I no longer need to send it on to the Spanish Consulate. Instead I send it for the Apostille stamp to the British Foreign Office.
If every country in the world signed up to the Hague convention, an English Notary would only need to register with the Foreign Office for all authentication.
Life is not so accommodating of course, and therefore at present the requirements of different counties may be any one of
• No further legalisation – including USA, Canada, Caribbean (except the Dominican Republic)
• Consular Legalisation – including Brazil
• Apostille / Foreign Office Legalisation – including most of Europe and Asia
• Both of them! Foreign Office and then Consular legalisation – including China, UAE, Turkey, Dominican Republic
In addition some countries will require that my Certificate should be interpreted by a qualified interpreter before submission for further legalisation
Notary Certificate in Public Form/in Private form
These alternative types of document are European in origin – particularly they are found in Spain. In Spain there is no direct equivalent of the English document called a “Deed”.
An English Deed is made in accordance with the Statutory definitions of a Deed. It must be Signed and Delivered as a Deed and the signature must be by an adult of sufficient mental capacity and in the presence of another adult as witness, who then countersigns. The significance of a Deed is that it is binding on the person who signs it even if no consideration (money or moneys-worth) has been received. This would not be true of a signed promise made without any witness and given for no consideration .
The two documents – the Public form and the Private form – used in Spain do not have the same distinction with relation to consideration. The physical difference lies in the lay out – a private form document follows the style of an English Deed or contract whilst a Public form deed is written in the form of a Proclamation by the Notary. In respect of the latter because it is the Notary’s documented record of what took place and is also a statement of the legal implications of the document, the liability of the Notary is extended beyond the scope of the private form.
In respect of the private form the English Notary may often be warranting nothing more than the identity of the signatory. In the Public Form he is responsible for all aspects of the document and its consequences both for the signatory and for all who rely upon it.

Travelling abroad with Children 19 September, 2011

If you are wishing to travel overseas with a child but cannot travel with BOTH parents, you should be very careful to take with you several properly Notarised forms of consent.
Because this has been the requirement for several years in most parts of the world including the USA, this is a problem which seems to cause trouble for British people more than for others.
Travel agents are increasingly aware of the situation but still people are getting caught out.
Typically the problem arises when a child is taken on holiday by grandparents; but it also happens when one parent only travels with a child, for whatever reason. The assumption is, “We have our passports – the child has a passport – what is the problem?”
Actually, The problem is – that you might travel thousands of miles, and get turned back at the border!
Foreign Governments do not wish to be seen to have assisted in child abduction of any kind whether by parents or by anyone. So when a child travels without both parents, there is the possibility that the journey is unknown to the non-travelling parent – who would not have given consent.
Too many people pass though the airports for any country to be certain that there is no court order in force prohibiting travel – so the safest answer for immigration authorities often is – No consent – No entry.
The lack of the notarised form can also give rise to difficulty in the event that the child becomes ill or has an accident. A Hospital for example might not operate on a child unless both parents are present to consent, or have previously signed a notarial form to say that the grandparents who are travelling with the child can make those decisions.
Many countries publish the text of the required letter of consent on the websites of their border control agencies and several others do not. If there is no specified text then I can draft a suitable wording for you of course.
Also do note that, for many jurisdictions, the consent document once notarised should be further “legalised” or “Authenticated” with either the Foreign Office Apostille or the Consular stamp of the Country concerned – or sometimes both of those. See my previous blog called “Glossary” for a more detailed explanation.
Be aware also that it is not only, or even mainly, national governments and immigration agencies which are requiring such consents. Increasingly individual airlines will apply their own rules. For this reason I would recommend that when you make the forms of consent, you obtain several originals at the same time.
It is not unknown, and it is usual in Brazil in particular, for an airline to require a letter on an internal flight in spite of the fact that such a form was previously provided when entry to Brazil was first made. Again, a further form may be demanded when you leave.
On a more trivial level I have seen cruise ships require that the responsible adult has the permission of the parent to agree to the child using the swimming pool, or trampoline, or making visits in the ports to which the ship travels.
I have recently seen in UK newspapers travel advice to the effect that “A notarised consent will be needed, so go and see your solicitor now” Well if you get your spectacles prescribed by your greengrocer, fair enough – otherwise please remember – Some Notaries are also Solicitors, but very few Solicitors are also Notaries.
Outside of the British Isles, the role of a solicitor is extremely limited, and it is the certificate of a NOTARY PUBLIC which will be required from you.

Notaries in The Civil Courts 8 September, 2011

The 2006 amendments to the Civil Procedure rules include a new rule 32.20 which gives probative force to Notarial Acts. The rule says “A Notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved”

What does it mean?
Well, as with all new law, the Judges will no doubt tell us in due course! What seems to be certain is that the Certificate of an English and Welsh Notary made in England and Wales is now accepted in the Courts as prime facie evidence of the truth of the statement contained in it.
Two obvious uses to which the new powers can be put immediately are
• in recording facts for future litigation, particularly where there are elderly or infirm witnesses
• in the making of Wills (perhaps with recourse to the Testator’s doctor or other relatives) where the Notary is able to record at the making of the Will that the Testator is of full age sound mind fully aware of the extent of his family to whom he may or may not have allegiance and that the Will is made of free will and without undue influence

The point is that the Notary is an independent third party lawyer owing a duty of care to the overall “Transaction” and not merely to the party paying him. Our Certificates are intended to be of great assistance to any Judge since to mount a successful challenge to the Certificate would be to impugn the integrity of the Notary himself. The likelihood is that the use of Notarial certificates and acts having true Probative Force will increasingly be of service to the administration of Justice and thereby to the service of the public.
One of my colleagues has emailed me to say
“I thought that you would be interested to know that I have prepared a certificate today with the intention that it might be used in court proceedings in this Country.
I was asked to view some pages from a website, print them off, confirm what I had done in a certificate and attach the printed web pages to that certificate. It struck me that this was an ideal introduction to the new world of probative acts. I was preserving evidence of something that is transient. I had only to record what I had done and I did not have to express any opinions whatsoever. My client took the view that the website contained misleading information; but that is a matter for him and the Courts.
Another case might be to prove rights of authorship – send me a CD or MP3 of your music and a statutory declaration can be made – a very cost effective way to prove copyright.
This change in the law is of obvious benefit to any party or solicitor involved in or contemplating litigation. If you fear that one day in the future you may need to prove as fact any matter which I can properly certify today (remember that I am able to certify anything which I can personally verify as a fact – this does not however mean that I can record my mere opinion since, as before, opinions are a matter for your expert witness) then give me a call and I can provide a suitable notarised certificate.
I leave it to your own ingenuity to devise further uses for this new facility – it seems to me that there is huge potential for Notarial assistance in litigation under the new rule.

Make a Separate Will for Each Country Where You Have Property 30 June, 2011

A Separate Will for Each Country

In my recent email newsletter to my clients and contacts I made the point that it is wise for any person who has assets, whether money or land, invested in more than one country to make a separate Will for each jurisdiction.

I received a response from a client asking me why this is recommended, and her request concentrated my mind as to what reasons I should give.

My eventual reply was :-

Separate wills for separate countries help to make it as fast as possible for the Probate to be granted and dealt with.

It means that both jurisdictions can be proceeding at the same time. If there is only one will, being dealt with in England say, then it cannot be in France or China or Jamaica at the same time, so the sale or transfer of assets in those countries will have to wait until the Will becomes available.

Most countries expect a Will to be made in that country in the language of that country. So if you have assets in Spain but your Will is made in English, it will need to be translated. Certain English expressions or phrases may be impossible to translate and not have an equivalent meaning in Spain, and then your Spanish Executors will need the help of a Notary to explain what your intentions were.

If you make a separate Will for each country, you can appoint different Trustees in each country. Otherwise if you appoint friends in England to be your executor worldwide, they will have to find lawyers and attorneys in foreign countries where they may not speak or read the language, to help them in respect of the foreign assets abroad.

If you make separate wills for each jurisdiction, you can use an English lawyer to make the English Will and a Chinese lawyer for the Chinese Will and so on. You will get better advice this way – each country has different rules about inheritance and tax and local lawyers will be able to give local advice. For example in France it is very difficult to make a valid will which does not leave at least some of your estate to your children.

I don’t suppose I have listed all the reasons why it is a good idea, but the above should be enough to be going on with?

My client replied to thank me for my answer – ” thank you for answering my question Mr Atkinson I notice its different stroke for different folk I suppose its the way of the world we live in” . Certainly the business of living – or dying- as a Citizen of the World is not getting any less complicated

A Typical Weeks Work for a Notary? 23 June, 2011

What Exactly Does A Notary Do Anyway?

I have summarised the nature of my work in one sentence on my website – “The function of a Notary Public is to substantiate evidence of human activities”
Fine – but what does that mean in the real world and what exactly do I do all day? For this blog I thought it might provide a helpful answer to that question if I simply prepare a list of the scope and nature of the work I have done in a typical few weeks. In every case, the person attending my office has been required to produce an original passport and at least one other proof of residence address (Bank statement, Council tax bill or utility bill). In addition where the client is a Limited Company, PLC or LLP I have commissioned a search of Companies House, to ascertain that the Company exists and who are its directors and to see its Memorandum and Articles of Association. Where appropriate I have obtained Foreign Office Apostille or Consular legalisation (see my main site and other blogs for more explanation of that)

So, I have recently:-
• Witnessed a Deed of Conveyance, for a house purchase in Jamaica. Although an Apostille can be obtained for Jamaican documents, none is usually required
• Witnessed the execution of a Deed of Power of Attorney by a Company Director in relation to the transfer of shares in a German Company. Also, obtained Apostille
• Provided certified evidence of the existence of a UK Company for the purpose of evidence required by a German Court. Apostille
• Witnessed the execution of a personal Power of Attorney in favour of a foreign lawyer for a house purchase in Malta. Apostille
• Witnessed the execution of a personal Power of Attorney in favour of his brother so that my client could deal with his affairs in Hong Kong. Again, Apostille required
• Act as supervising Notary to the execution by my clients of their Wills dealing only with their Estates in Spain. Apostille
• Certified for use in the Canary Islands that a UK Grant of Probate is genuine, so that the Spanish Estate of the Deceased could be administered. Apostille required
• Twice in the past week, I have acted for Doctors seeking to obtain work permits and visas for Australia, and prepared certified copies of their professional qualifications and degrees. Australia does not (yet) require any Apostille.
• For a client moving to India, obtained certification from his children’s school as to their academic progress so that they can find appropriate school placing in India. And see my earlier blog about the ongoing saga as to whether my certificates for India should have Apostilles (yes!) or Indian High Commission Certification (no!)
• Took evidence and prepared Affidavits from a couple wishing to marry in Sri Lanka stating that each is single and adult and free to marry. For Sri Lanka the usual requirement is for an Apostille plus Consular Authentication but in this case the travel agents concerned said no legalisation was needed. I advised my clients to check this very carefully
• Witnessed a Power of Attorney appointing a lawyer in India for use in Indian Court proceedings where there is a land ownership dispute. The four children of an Indian citizen now all live in England and their father has died. They now require to protect their land rights. Apostille
• Witness execution of a mortgage Deed for use in Florida. In Florida, a Deed which is executed in England is required to have been signed not only in the presence of a Notary Public but also in the presence of two additional adult witnesses. Although no Apostille is usually required for US Deeds, in fact the United States is a party to the Convention of the Hague. For that reason occasionally Floridian lawyers will request the Apostille. Often this is required for New York and California also.
• Witnessed the execution of house sale papers for Barbados by the Executor of the deceased house owner there. No Apostille is required for Barbados when the deeds are executed in UK
• Witnessed the signature of a letter of authority by a Company sales executive to confirm for the authorities in Saudi Arabia that a person there is its genuine agent. For Saudi Arabia, legalisation with Foreign Office then Saudi Consulate via the Arab British Chamber of Commerce
• Countersigned for USA a medical student’s application for permission to sit medical examinations there. No further authentication was required.
• For Slovakia, obtained from the UK Registry of Births Deaths and Marriages a Birth Certificate for a child born here of Slovakian parents. Obtain the Apostille upon it, so that the certificate would be accepted in Slovakia and the child could obtain a Slovakian passport.
• For Saudi Arabia and also United Arab Emirates, I witnessed a Power of Attorney Deed and a copy of a Board Meeting resolution produced to me by a Company director of a UK Company and dealt with all legalisation (Apostille, UAE Consulate, Saudi Consulate via Arab British Chamber) in order to establish the decisions of the Company as to its representation in those jurisdictions.
• Confirmed for the Spanish Tax authorities the status of a major UK PLC company in relation to its VAT registration and obtain Apostille
There is I think no limit to the scope and nature of the actual jobs I may be called upon to do but I hope the list above gives a flavour of the very interesting and varied problems – and solutions – that I deal with day to day.
As ever, please do email me if you would like me to respond to any thoughts or queries you have, arising from this blog

Documents for use in India – 2011 Update 13 May, 2011

DOCUMENTS FOR USE IN INDIA – 2011 UPDATE

Since my most recent blog on this subject in December 2010, there has been a further development.

You will recall that the problem is that in areas of India and particularly in the Punjab, lawyers and other Authorities are requiring that Deeds and papers created in England for use in India should be notarised, legalised with the Foreign and Commonwealth Office and then further legalised at the Indian High Commission in London or Birmingham. The third step is in fact unnecessary as a matter of International Law.

Representations have been made by the Commissioners of the Hague Convention to the Federal Government of India. This has now resulted in a directive which can be read on the website of the Punjab Government at http://punjabrevenue.nic.in/stamp5-8-2010.pdf .

In a nutshell, the guidance regulation confirms to all Punjab lawyers and Authorities, that NO FURTHER LEGALISATION IS REQUIRED, once the notarised paper bears the Apostille of the Foreign and Commonwealth Office.

This is very good news, although I suspect that it may be some considerable time before this is clearly understood and implemented throughout the Punjab.

COMPANIES – Authorised Signatory – With No Authority? 12 May, 2011

New Tins – New Worms (Authorised Signatories not authorised to sign)
I can make no apology for returning to the question which more than any other seems to cause problems and frustrations for UK companies in dealing with jurisdictions abroad.
It has been noted before, by both lawyers and Company Officers, that we do not seem to be on each other’s wavelengths! I fully understand that there can often be a conflict between the business man in a hurry and the lawyer advising that progress be made only cautiously with strict regard to the wording of the law. We lawyers are not trying to slow things down even though it may seem that we are.
I have previously set out section 44 of the Companies Act with regard to the requirements of valid Deed – and noted that a Company can only appoint an Attorney, by a valid Deed.
I have also blogged about the new s47 of the Act which enables a Company by Deed, to appoint an Attorney whose authority can include the Power to execute future Powers of Attorney by Deed all on his/her own (plus a signing Witness), even though that Attorney may not be a Director or Company Secretary or even an employee of the Company at all.
Still with me? Now for section 44 (3) which in typical fashion attempts to clarify the law and succeeds more often than not in confusing everyone
S44 (3) states that “The following are “authorised signatories” for the purposes of subsection (2)—
“(a) every director of the company, and
“(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company. “
Where is the confusion? This means that the Company Secretary is authorised to sign Deeds and Documents on behalf of the Company, right? Well it would mean that, if the weasel words “for the purposes of subsection (2)” are overlooked. In every other Country in the World the expression “Authorised Signatory” is used and understood by lawyers and business people alike, to have its dictionary meaning. If I am your Authorised Signatory then my signature stands for yours doesn’t it? Perhaps it does, unless we are dealing with an English and Welsh Limited Company!
Because the proviso “for the purposes of subsection (2)” means that section 3 is merely a definition section to interpret s44 (2) which itself states
A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.
So you might be an Authorised Signatory, but you cannot validly execute a Company document on your own if you are not a Director!
Do you find room in your heart to pity the poor Notary, who has to explain to the stressed out Company Secretary (who has perhaps been left to run the Company on his own in the factory with all the Directors abroad and who needs to get a Power of Attorney ready for use in Russia TODAY) that just because he is an Authorised Signatory of the Company, he certainly should not be under the impression that he is authorised to sign anything for the Company?

Make your Wills. Every Adult person should have (at least one!) Will 19 April, 2011

Do make your Will(s) and don’t “Do It Yourself”
It continues to amaze Lawyers – Notaries and Solicitors alike – how many otherwise sensible adults have not prepared their Wills. If you do not make your Will, then you will:-
1 Make your Estate liable for payment of Inheritance Tax at the highest possible rate in respect of its value. That is to say, you will have failed to maximise possible tax relief.
2 Make your money go to people you would not have wanted to receive it. If you have a spouse and children and if you own more than £250,000 on death, did you know that your spouse will NOT receive the whole of your estate? If you die with assets of £2 million, do you really want your spouse to receive £250,000.00 only and the rest go to the kids? If you have a spouse and no children, do you want over £1.5million to go to your nephew? Think about it – if you have £2million how much of that is tied up in the value of the house. So if the consequences of the intestacy are that an immediate £775,000.00 has to be paid out to the nephew, how can that be done unless the house is sold and then where is your spouse going to live? It doesn’t matter that you can hardly believe it – this is what can happen. It doesn’t just happen once in a blue moon either – according to the figures stated by SAGA, in UK last year over 4000 houses were sold because someone had died without a Will. The sad sad reality – In one sudden shock, someone has been widowed and forced to move to a much smaller house and leave the home behind with all their memories.
3. Risk causing a rift between your loved ones that might never be repaired. The glib assumption is that families fall out over inheritances because they are greedy. In my experience that is usually not the case. What happens when someone dies, especially in the case of sudden death, is that the friends and family have to deal with the situation in a state of shock. Often people feel a sense of guilt, however irrationally. This can come to the surface as a wish to ensure that your wishes are respected. At an early stage in a fight about inheritance all parties are likely to say to each other “I KNOW WHAT S/HE WOULD HAVE WANTED”. The trouble is, that A is convinced you WOULD HAVE WANTED something which is exactly the opposite of what B believes you WOULD HAVE WANTED. It is too late to ask you, you didn’t make a Will! So the fight goes on, the value of the Estate gets wasted on Lawyer’s fees and no-one ever does get to find out what you would have wanted.
4. Risk your foreign-owned Property passing under compulsory Inheritance rules applicable in the Foreign Country which are very different to the UK intestacy rules and which devolve your Property there in a way you do not want and which could have been avoided if you had made a Will.
There are more reasons but surely those four make the case? Perhaps I can add a fifth one – failing to make a Will does not ensure that you will live longer, not even by a day.
In the headline I say – Make your Will(s) – more than one? Obviously if you make a Will in respect of “all of my assets wheresoever in the World” then you cannot make another one without revoking the first one at least partially. What I am referring to, is my advice that if you have Property (whether money or interests in Land) in more than one Country, you should make a separate Will in respect of your assets, one Will for each country.
Doing so will give you the opportunity to maximise tax relief in respect of the laws of the Countries concerned. You should also take advice as to where the Wills should be made. A UK citizen domiciled in UK with assets in Spain, for example, can make a Will in UK in respect of assets here, and a Will in Spain (or a Spanish Will executed in England before a Notary Public here) for the Spanish assets. However if the UK citizen is domiciled in Spain, the Spanish courts may take the view that a UK will cannot be validly made at all. It is complicated and specialist advice is essential.
Finally, you should not seek to save a few bob by making your own Will. Just don’t. I have seen a great many home made Wills in my career. I think that every single one of them had defects. If a million monkeys type for a million years, they might type the works of Shakespeare it is said. I think they would more likely do that, than type a valid Will. And then they might get the wrong person to witness it!
Please, decide today that you will make your Will. Tomorrow, sadly for us humans, might be too late.