FAQ

The terms “affiant” and “deponent” are often used in relation to an affidavit. In fact, every affidavit must have either an affiant or a deponent.

But what do these words mean and what is the difference between them?

The words affiant and deponent actually exactly mean the same thing. They are different terms used to refer to the person making an affidavit.

The person making the affidavit is the person whose evidence is written in the affidavit and who swears the oath or makes the affirmation in respect of that affidavit.

There is no difference between a deponent and an affiant. It is just that different countries use different terminology to refer to the same thing.

The term “affiant” is used exclusively in the USA. It would be very unusual to hear an affiant referred to as a “deponent” in North America.

The reverse position is true in most other common law countries. Places such as the United Kingdom, Australia and New Zealand all use the term “deponent” exclusively or near-exclusively.

But in Canada, both the terms “affiant” and “deponent” are in widespread use and are sometimes used interchangeably in the same legal case!

So the truth is that there’s no difference between an affiant and a deponent, but what you call that person all depends on where you are. And if you are in Canada, it seems you can take your pick of either.

The phrase “I verily believe” or “I am informed and verily believe” is often seen in affidavits. In fact, lawyers love to say they “verily believe” all kinds of things!

So what does the phrase “I verily believe” actually mean? And should you really be using it in affidavits?

The word “verily” is a Middle English word dating from about 1250. It means “truly” or “in truth.” Therefore to “verily believe” something simply means to “truly believe” something.

Should you use “verily believe” in an affidavit?

While we still use many words dating back to Middle English times, “verily” is not one of them. You might encounter it in an ancient hymn, but it is not part of everyday language – formal or informal. The word is considered archaic these days.

The information above is all you really need to determine whether to use “verily” in an affidavit. The answer is no!

Because “verily” is that it is not a word that the person making the affidavit (the affiant) would ever use themselves, it does not make any sense to include it in their evidence. This includes lawyers! Affidavits should use the words of the affiant wherever possible.

There’s another great reason for abandoning this phrase for good. That is because “verily” does not add anything to “believe”: if a person making an affidavit swears on oath that they believe something then it is implied that they truly believe it. The entire affidavit should contain only matters the person making it truly believes are correct!

The phrase “I crave leave to refer” to a document is sometimes still found in affidavits.

But what does it mean – and is it necessary?

In this expression, the words “crave leave” mean “seek permission”.

Hence the person swearing the affidavit (the affiant) is seeking permission from the court to refer to a document referenced in the affidavit.

Here the word “crave” is being used differently to how you might ordinarily use “crave”.

In modern language, “crave” means to long for something – such as a loved one’s attention or donuts! But “crave” also has a more ancient meaning of “to ask for”. You can see this in the example below.

Should I use the words “crave leave” in an affidavit?

If you were in an English court in the 1800s, then “crave leave” might be an appropriate expression to use in an affidavit – indeed it appears multiple times in the Works of John Locke, the author of which died in 1704.

However the phrase is completely unnecessary today.

“Craving leave” is an outdated expression and it should be avoided (its use also violates the rule that the person making the affidavit should use their own words in the text of it).

Instead of “craving leave”, to refer to a document in an affidavit, the affiant should simply refer to the document by the manner in which it is incorporated (annexing, exhibiting, attaching it or otherwise as the relevant jurisdiction permits).

For example, the person making the affidavit should simply say “Annexed and marked with the letter “A” is a [name of the annexed document].”

The bottom line is to leave your cravings for the donuts.

It might not be better for you, but it will make for a better affidavit.

The jurat in an affidavit is the signature panel at the bottom of the text of the affidavit.

A jurat is also sometimes called a “jurat clause,” “jurat certificate,” “jurat form” or “jurat stamp.”

The jurat contains spaces for both the person making the affidavit (known as the affiant) and the witness to place their signatures.

The jurat will also state whether the affidavit was sworn or affirmed, and will contain details of the witness (their name, address and qualification for example notary public) and the date and place that the affidavit was made.

Example jurat clause for an affidavit

This is an example of a jurat clause. It is only an example and should not be relied upon in any particular case. There are many different jurat clauses.

Remember that you must use the correct jurat clause for the jurisdiction and court in which you are making your affidavit.

State of Texas
County of [Name of county]

SWORN to and SUBSCRIBED before me, the undersigned authority, on the [insert] day of [insert month], [insert year] year, by [Insert full name of the affiant.]

[Signature of Notary]
________________________________________
Notary Public, State of Texas

[Notary’s stamp]

The legal definition of a jurat or jurat clause

In Black’s Law Dictionary (9th edn, 2009) a jurat is defined as a “certification added to an affidavit … stating when and before what authority the affidavit… was made”. The definition notes that a jurat typically indicates “that the officer administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document”.

The above definition of a jurat clause was cited by the Texas Supreme Court in Mansions in Forest v. Montgomery County, 365 SW 3d 314 (Tex. 2012).

The Court also cited the following definition of jurat: “A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer. Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970)”.

What is the purpose of a jurat in an affidavit?

There are two important reasons for including this information in the jurat.

First, a reader of the affidavit can see from document whether the witness is qualified to administer the oath or affirmation.

Both the witness’s qualification and the place that the affidavit was made are included in the jurat because the witness’s power to administer the oath or affirmation may – and often will -have geographical limits.

At common law, an “affidavit” that is purportedly sworn or affirmed at a place before a witness who does not have the power to administer an oath or take an affirmation at that place will be invalid.

Secondly, the jurat enables a reader of the affidavit to contact the witness to ensure that, in fact, the affidavit was genuinely made.

Where there is doubt about this issue, a party to court proceedings can cross examine the witness as to whether, and the circumstances in which, an oath or affirmation was made and the affidavit was executed.

Similarly, the person making the affidavit can call the witness to give evidence that that affidavit was in fact validly made in circumstances where the jurat has been incompletely or defectively filled out.

Does the date always have to be included in the jurat for an affidavit?

An affidavit must always include the date on which it is sworn or affirmed. Often the date is included in both the jurat and at the beginning of the affidavit.

However the forms of affidavit used in some jurisdictions may include this information in only one of those places. This means you may see affidavits which don’t contain a date in the jurat because the date is instead elsewhere in the affidavit.

This is acceptable because it complies with the requirement that the affidavit be dated.

Always use the form of jurat that is prescribed in your jurisdiction if there is one.

Can the jurat appear on a page by itself?

In some jurisdictions there is a convention that the jurat of an affidavit should not appear on a page by itself.

This is a measure to ensure the integrity of the affidavit (ie to prevent the jurat being executed and then affixed to pages which had not been finalised when the jurat was signed).

If there is no room for the jurat at the bottom of the final page of an affidavit, the answer is simply to insert a page break before the final paragraph of text. Then the jurat and the final paragraph will appear together on the last page.

Signing on the bottom of the page that the jurat is on

When executing an affidavit, both the person making the affidavit and the witness ordinarily sign their full signatures on the bottom of each page to ensure the integrity of the affidavit.

However it is not necessary for them to do so on the last page of the affidavit. Instead they should sign in the jurat on that page.

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.

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.