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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.

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

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.

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?

It is not straight forward and can give problems to any lawyer that agrees to backdate a document, even if he makes it clear on the document that it is backdated, as he must be careful to make sure that he knows why the document is being backdated and that it is being done for a legitimate reason.

Therefore, if in doubt it is best to say “no” or to take external legal advice if appropriate.

The position is then clear to all who subsequently look at the document.

Another way is to state at the beginning of the document that it is made “as of” the required date.

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.

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