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The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did.This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator.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.He also has no way of knowing whether the backdating will be scrutinized by a regulatory authority or even a Court.For example, will the document be provided in support of the party’s tax position giving the impression that a signed legal contact was in place before it was?
Is it legal to comply with the request or must it always be refused outright?
Another way is to state at the beginning of the document that it is made “as of” the required date.
However, the actual date of signature should nevertheless be set out in the attestation clause at the end to avoid any claims that the document was intentionally misleading.
The difficult question for a lawyer to answer is to what extent does he have to enquire into the veracity of his client’s statement that the document “is just recording an earlier agreement”?
Does he need to check to see whether that was actually the case or can he take an ostrich-like position and put his head in the sand and not ask any questions?
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This is not an agreement that could have been made orally.