By backdating

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I am sure that from time to time we have all come across the vexed question of backdating documents.

A client or, in the case of an in house lawyer colleague (who for the purposes of this article will also be considered a client), asks you to prepare a document and then your heart sinks as he says “oh and it has to be dated” and gives a date which has already passed.

Is it legal to comply with the request or must it always be refused outright?

Alternatively, is there a way of legally trying to achieve the required objective?

If the document is putting in place something which “should have been done” but hasn’t been, usually for tax or similar reasons, then the position is straightforward.

For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits.

However, he only realizes this in January and so wishes to backdate the document to December.

For obvious reasons, any request to backdate a document for these reasons should be flatly turned down.

However, an explanation often given by the person wanting to backdate the document is that the document is merely meant to reflect an oral agreement that has already been made and that this is just a way of documenting it.

In theory, this would appear on the face of it to be a reasonable request, as it is just a private arrangement between two parties.

The argument is obviously not valid if the transaction is one which is required by law to be in writing such as a transfer of land.

This is not an agreement that could have been made orally.

However, even if it is an agreement that could have been made orally the lawyer preparing the agreement has no way of knowing whether that is actually the case and that the agreement to be fully documented by him is the one that was reached at the earlier date.

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