Can you backdate or postdate an affidavit?

Backdating and postdating affidavits are different concepts but they give rise to the same problem. To backdate an affidavit means to give it a date before it was actually sworn or affirmed. To postdate an affidavit means to give it a date after it was sworn or affirmed.

Either way, it is not permissible to backdate or postdate an affidavit. The date on the affidavit must be the date on which the affidavit is actually sworn or affirmed.

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One reason for this is that the date on the affidavit is the date on which the affiant is saying that the matters stated in the affidavit are true. They may not be true before or after that date, but that is not the point.

Secondly, the date helps evidence when, how and before whom the affidavit was sworn or affirmed, just in case these matters were contested. This is why the witness (usually a notary public) must give their details on the affidavit. These matters can be and sometimes are contested.

Most importantly, it is misleading for a document to represent that it was sworn or affirmed on a particular date if, in fact, it was not. This misrepresentation is not cured simply because the person swearing the affidavit would have given the same evidence on two days.

The backdating or postdating makes the affidavit misleading and irregular.

Practical considerations

Sometimes the date on an affidavit will be left blank when the document is printed, for instance because when the affidavit is printed it is not known exactly on what date the affidavit will be sworn or affirmed. In these situations, the person swearing the affidavit or the witness should handwrite the date in before the affidavit is sworn or affirmed.

Also, if the wrong date is typed in then this should be crossed out in handwriting and the correct date written in before the affidavit is sworn or affirmed. The person swearing the affidavit and the witness must both sign beside the alteration when signing the affidavit.

The practise in some jurisdictions is for initials to be placed beside alterations instead of full signatures. Other jurisdictions required the alteration to be “ticked” as well as the placing of the signatures or initials.

Some forms of affidavit may have the date in two or more places. It is necessary that all these dates are correct (and therefore are the same). An affidavit that purports to be sworn or affirmed on two different dates is irregular.

If challenged it may be necessary for the affiant and / or the witness to give evidence of the actual date of swearing or affirming the affidavit to correct the defect. This should be avoided, so check carefully before swearing or affirming!

Consequences of backdating or postdating affidavits

Solicitors have been reprimanded for incorrectly dating affidavits. Two significant disciplinary decisions are:

The Canadian case of Re: Stanley Foo (Discipline Case Digest — 1999: No. 07 April (Foo))

In this case a solicitor drafted and dated an affidavit six weeks later than the date on which it was actually sworn.

The hearing panel held that this constituted professional misconduct and was a breach of the lawyer’s duty to uphold the administration of justice. The solicitor received a fine.

The Australian case of Re a Barrister and Solicitor (1984) 58 ACTR 1

In this case the solicitor changed the date that an affidavit was sworn without having the person who made the affidavit reswear it. This meant the affidavit appeared to have been sworn on a date later than which it was really sworn.

The court found that the solicitor had filed the document with the court knowing it was false in a material particular. The solicitor was reprimanded and received a fine.