The Affidavit Guru | Affidavit HQ

Is an affidavit made before an unauthorised person still valid?

July 11, 2015June 19, 2015 by The Affidavit Guru

Affidavits must ordinarily be sworn before certain categories of people. The categories of people who are authorised to take affidavits will vary depending on the jurisdiction for which the affidavit is made, although typically notaries public are competent to take affidavits and often solicitors are as well.

However, what happens when an affidavit is sworn or affirmed before someone who does not have the authority to take the affidavit? Is the affidavit valid or invalid?

The answer is that an affidavit which is sworn or affirmed before a person who is not authorised to take it is invalid. Such invalidity is not a mere technicality. It means that the document is not an affidavit.

This means that the failure to make the affidavit before an unauthorised person is an irregularity that cannot be cured. Therefore it is vital that affidavits are made before authorised persons.

The reason for this is that central to all definitions of an “affidavit” is that the document is attested to before someone authorised to administer an oath.

In State ex rel. Nollmann v. Gunn 513 SW 2d 710 (1974) it was stated that:

The chief essentials of an affidavit are that it be sworn to or affirmed before some legally authorized officer. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182, 183 (1938)

In Halsey v. Pat Reichenberger Lumber Inc 621 P. 2d 1021 the Court of Appeals of Kansas, in reliance on authorities including Thompson v Self concluded “that the affidavit herein was invalid because it was signed outside the presence of a notary.”

The matter was considered in the Australian case of Carb Royale Pty Ltd v Tonkin [2000] VSC 399 in which Senior Master Mahoney stated:

“If it is not made before a person authorised to administer an oath or affirmation for an affidavit, the document, despite its form, will not be an affidavit…”

In McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384 Barrett J stated:

The absence of any indication that the deponent or supposed deponent appeared before any official recognised by the Oaths Act and that an oath was administered, so that the affidavit was sworn before that official, is fatal to the contention that the document is an affidavit – unless extrinsic evidence is tendered and received to prove those matters.

Critically, whether a person is authorised to take the affidavit depends on the law of the jurisdiction for which the affidavit is taken, not the jurisdiction in which it is to be sworn or affirmed. So an affidavit that is to be sworn for jurisdiction A but in jurisdiction B must be sworn before a person authorised to take the affidavit by the law of jurisdiction A.

However, often jurisdiction A will have a provision that states that an affidavit taken outside jurisdiction A may be taken before an official authorised to administer oaths in the jurisdiction in which the affidavit is sworn or affirmed (jurisdiction B). If such a provision is identified then the issue becomes whether the official has the power to take the affidavit under the law of jurisdiction B.

When has the word “affidavit” been judicially defined?

June 21, 2015June 19, 2015 by The Affidavit Guru

The word “affidavit” has its origins in the mid 1500s and comes from the medieval Latin word “affidare,” literally meaning “he has stated on oath.”

The courts of common law countries have considered the legal definition of an affidavit from time to time. This page lists some court cases in which the word “affidavit” has been judicially defined.

United States

In Farm Bureau Mut. Auto Ins. Co. v. Hammer, 83 F.Supp. 383, 386 (W.D. Virginia), Chief Judge Paul gave the following definition of an affidavit:

“An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath.”

Although the decision was reversed on other grounds (177 F.2d 793 (4th Cir.1949)) and certiorari was denied (339 U.S. 914, 70 S.Ct. 575, 94 L.Ed. 1339 (1950)) this definition has been quoted with approval in several subsequent cases. These include Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) and Evans v Commonwealth 572 S.E.2d 481 (2002) 39 Va. App. 229.

Other cases in the United States have adopted the definition of affidavit given in Black’s Law Dictionary and other legal dictionaries. Those authorities are noted in this post.

United Kingdom

In the United Kingdom “affidavit” was defined in volume 1 of Mathew Bacon’s A New Abridgement of the Law as “an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same.”

This definition was adopted in the case of R v Phillips (1908) 9 WLR 634; 14 BCR 194; 14 CCC 239.

Canada and Australia

Both Canada and Australia have followed the United Kingdom in citing the definition given by Bacon above with approval, rather than attempting their own form of definition. In Australia this occurred in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 at [16] (Barrett J).

In Canada the relevant authority is R v Nichols [1975] 5 WWR 600 (Wachowich LJSC), albeit that the citation is to R v Phillips (1908) 9 WLR 634; 14 BCR 194; 14 CCC 239 (being the UK case citing Bacon noted above) rather than directly to Bacon.

Queensland UCPR affidavit template

June 21, 2015June 10, 2015 by The Affidavit Guru

This page has a free blank affidavit template for use in under Queensland Uniform Civil Procedure Rules. The Qld UCPR apply in the Supreme Court, District Court and Magistrates Courts of Queensland.

Please read the information on this page before downloading the form below.

Further instructions on how to complete this form can be found here.

About this Qld UCPR affidavit template

This Qld UCPR affidavit form has been designed to look good, be easy to work with and and to comply with the rules of court. The layout is easy to read in print and electronic form, and the template has its own bespoke, auto-numbering that actually works and looks lovely.

This template is in accordance with UCPR Form 046, which is the approved form required by r 431(1) of the Uniform Civil Procedure Rules 1999 (Qld).

The affidavit template is a combination of two forms: Form 1, which is the coversheet form for all court documents, and Form 33, which is the affidavit form. The template has a page break between the two forms as the rules of court require.

Because the template complies with the relevant rules of court, this means that it has:

clear margins no smaller than 10mm on the top, bottom and right sides (r 961(c) UCPR);

a margin on the left side of the document wide enough for the seal of the court to be stamped on it (r 961(d) UCPR);

type no smaller than 1.8mm (10 point) (r 961(e)(i) UCPR); and

numbered pages (r 431(6) UCPR).

Use of this free template is subject to our terms and conditions.

Download a free Qld UCPR affidavit form

UCPR Qld Affidavit Form

Affidavit must be made by deponent speaking of their own knowledge

The affidavit must be confined to the evidence the person making it could give if giving evidence orally (r 430(1)) ie matters within their own knowledge.

There are exceptions for interlocutory proceedings or for affidavits for use in an application because of default. Conditions apply (see r 430(2)).

Text of the affidavit

The affidavit must be made in the first person (r 431(3)).

The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject (r 431(5)). In practise, this means that each paragraph should contain no more than 2-3 sentences.

Dates, amounts and numbers may be stated in figures and not in words (r 962). Using figures is the usual way of stating such things in an affidavit (eg “54 days” not “fifty four days).

Exhibits to Qld UCPR affidavits

Documents and other things that are used with and mentioned in Queensland UCPR affidavits are called exhibits. Detailed rules apply to the use of exhibits, including explaining how these must be marked, certified, bound and paginated. These rules are set out in r 435.

Swearing or affirming the affidavit

An affidavit must be made before an authorised person to whom the maker of the affidavit (the deponent) swears or affirms his or her honest belief in the truth of the contents of the affidavit. Section 41 of the Oaths Act 1867 (Qld) sets out who an authorised person is for the purpose of taking affidavits in for the UCPR Qld.

When the affidavit is sworn or affirmed, each page must be signed by the deponent and the witness (r 432(1)). Initials are not sufficient. Full signatures must be used.

Illiterate deponent

If the authorised person taking an affidavit considers that the deponent is incapable of reading the affidavit, the person taking the affidavit must read or otherwise communicate the affidavit to the deponent. The authorised person should only take the affidavit if the deponent seemed to understand the affidavit and signified that they made the affidavit (r 433(1)).

In the last part of the jurat the authorised person should put the following text after the “capacity of witness” field:

“who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit.”

Deponent unable to sign affidavit

If the authorised person taking an affidavit considers that the deponent is physically incapable of signing it, the person taking the affidavit must ensure the affidavit is read or otherwise communicated to the deponent (the deponent may be able to read it themselves in some circumstances). The authorised person should only take the affidavit if the deponent seemed to understand the affidavit and signified that they made the affidavit (r 433(2)).

In the last part of the jurat the authorised person should put the following text after the “capacity of witness” field, adjusted for the particular circumstances as necessary:

“who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit, but was physically incapable of signing it.”

Alterations after the affidavit is sworn or affirmed

The contents of an affidavit cannot be altered after it has been sworn or affirmed. However handwritten interlineations, erasures or other alterations can be made to the text of an affidavit before it is sworn or affirmed. These must be initialled by both the person making the affidavit and the person witnessing it.

Footers to the pages of the affidavit

The footer for the first page of the affidavit should be as per the first page of the template: ie it should contain panels for the signature of the deponent and witness, the page number and the details of the filing party.

The footer for the second and subsequent pages except the last should be as per the second page of the template: ie they should contain the signature panels and the page number. The footer for these pages will be automatically generated by the precedent.

The footer for the final page does not need the signature panels but does need the page number (this is because the jurat will appear on that page with the signatures of the deponent and witness). To make this happen, place a section break at the top of the final page and edit the footer just for that section to remove the signature panels.

Affidavit form for the South Australian Supreme Court

May 22, 2015May 22, 2015 by The Affidavit Guru

This page has a free blank affidavit template for use in the Supreme Court of South Australia.

Please read the information on this page before downloading the form.