An affidavit is a formal written statement which the person making the statement solemnly promises is true.

Affidavits are important legal documents that come in many different types and are used in many different ways.

The person making the statement is usually known as the affiant.

The solemn promise must be made in the presence of a witness who is authorized by law to receive that promise. Affidavits are most commonly made before a notary public.

Finally the affidavit must be signed by both the person making the statement and the witness, each in the other’s presence.

The solemn promise the person making the statement makes can either be a religious promise known as an oath or (in most legal systems) a more modern, non-religious alternative to an oath called an affirmation.

In both cases, penalties apply if a person deliberately makes a false affidavit. The penalties can range from a fine to imprisonment. It is therefore very important that your affidavit contains the truth, the whole truth and nothing but the truth.

If you would like to read more about the legal definition of an affidavit, you can do so here.

 

While the word “affidavit” itself has its origins in the mid 1500s, the best definitions of affidavit are more recent and take into account modern refinements such as the ability for a non-religious person to make an affidavit.

Affidavits have been used in court proceedings for nearly 200 years, so it is smart thinking to look at those cases to find many very good and comprehensive definitions of the word “affidavit”.

A good place to start is Black’s Law Dictionary, which has a definition of affidavit that has been quoted by courts for nearly 100 years. Black’s is the most widely used law dictionary in the United States and the most widely cited law book in the world! So it is not surprising that Black’s authoritative definition of affidavit has been quoted with approval by courts many times.

Black’s Law Dictionary definition of affidavit

Black’s Law Dictionary defines an affidavit as “A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.”

There’s a good example of the Black’s Law Dictionary definition of affidavit being quoted by a court in the 1934 case of Amtorg Trading Corporation v United States 71 F. 2d 524, a decision of the Court of Customs and Patent Appeals. The Court added that this definition was confirmed by 1 Words and Phrases, First Series, p. 240; Bouvier’s Law Dictionary (1897), vol. 1, p. 111; Corpus Juris, vol. 2, p. 317 and Webster’s New International Dictionary (1932).

More recent examples of United States federal and state courts quoting the Black’s definition of affidavit as the “legal definition” of an affidavit include Granada v. United States, 51 F.3d 82, 85 (7th Cir. 1995), Kennedy v. State, Miss: Court of Appeals 2019 (No. 2016-CP-00755-COA) and Wilcher v. State, 863 So.2d 776, 834 (¶ 209) (Miss.2003) .

Other US definitions of “affidavit”

The word “affidavit” is defined in the second edition of American Jurisprudence (3 Am. Jur. 2d Affidavits § 1) in the following terms: “Any voluntary ex parte statement reduced to writing, and sworn to or affirmed before a person legally authorized to administer an oath or affirmation.”

Again, this definition is widely accepted in the United States. It has been cited in State of Wisconsin v Morgan No. 99-0993. The American Jurisprudence definition is also cited in Ballentine’s Law Dictionary, which itself was cited with approval in In re Beecher, 50 F. Supp. 530 – Dist. Court, ED Washington.

Overseas definitions of affidavit

An earlier definition of an affidavit was provided in England by writer Matthew Bacon in his seminal work A New Abridgement of the Law, widely known as Bacon’s Abridgement. In 1 Bac Abr 124 (the most recent English edition, published in 1832) Bacon stated that:

“An affidavit is an oath in writing signed by the party deposing, sworn before and attested by him who had authority to administer the same.”

The definition of an affidavit given in Bacon’s Abridgement dates from a time prior to the acceptability of affirming as well as swearing an affidavit, which is why the definition does not refer to the two alternatives.

The Bacon’s Abridgement definition has been cited in relatively modern times in Canada by Wachowich J of the Alberta Supreme Court in R v Nichols [1975] 5 WWR 600; 1975 CanLII 250 (AB QB), citing R v Phillips (1908), 9 WLR. 634, 14 BCR 194, 14 CCC 239 as its source.  At the time of that decision an affidavit in Canada could not be affirmed; instead the person wishing to give evidence in a secular manner was required to made a statutory declaration (see 14 Alta. L. Rev. 362 (1976)).

The Bacon’s Abridgement definition has also been cited in Australia by Barrett J in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 as a historical starting point (the definition was approved more recently in Bobolas v Waverley Council [2016] NSWCA 139).

His Honour then moved to explain statutory changes that had broadened the definition to encompass affidavits that were made by affirmation as well as sworn by oath.

Conclusion 

I hope the information above has assisted you with your search for the legal definition of the word “affidavit”. Certainly, after 200 years, it is clear what the legal definition of an affidavit is!

The expressions stated above are really all different ways of saying the same thing. It is pleasing to say that there is no genuine controversy at law about the definition of an affidavit.

Affidavits come in many different types. Some of the most popular types of affidavits are explained below.

Please remember that, whatever the type of affidavit, it will still need to satisfy the definition of affidavit and comply with the appropriate drafting principles.

Your affidavit should also use the correct form for that type of affidavit.

Some common types of affidavit are listed below.

 Affidavit of service

An affidavit of service is an affidavit in which the person making the affidavits swears or affirms they have served documents on another person.

The documents are usually court documents and the affidavit of service is sworn to prove the service of the court documents.

For example, if a person who is sued does not turn up to court to defend the proceedings then the court may enter judgment for the plaintiff.

However the court will require proof that the defendant has been served with the court documents. This proof is usually supplied by tendering an affidavit of service to the court.

Depending on the jurisdiction and court rules, an affidavit of service may annex copies of the document(s) served or it may simply describe the document(s) by reference to the proceedings (eg “a copy of the statement of claim in the proceedings numbered 123 of 2012 between John Doe as plaintiff and Richard Smith as defendant”).

 Affidavit of debt

An affidavit of debt is an affidavit sworn by a creditor to provide evidence of an unpaid debt owed to the creditor by an individual or company.

Affidavits of debt may be required in bankruptcy or liquidation proceedings, or in support of a statutory demand for money (which may result in winding up proceedings if the company does not pay the amount referred to in the affidavit of debt and demanded in the statutory demand).

 Affidavit of domicile

The term “affidavit of domicile” is used in the field of wills and estates.

When someone dies, the executor of their estate will in some jurisdictions be required to make an affidavit that states the place where the dead person was living (ie domiciled) at the time of their death.

 Affidavit of domicile and debt

An affidavit of domicile and debt is an affidavit of domicile (see above) in which the executor also states that all the debts, taxes and claims against the estate have been satisfied out of the estate.

The affidavit is made so that any property owned by the deceased can be transferred to descendants or to its new legal owner (such as a purchaser).

 Affidavit of support / affidavit in support

The terms “affidavit of support” and “affidavit in support” are used interchangeably in legal proceedings to refer to an affidavit that provides the evidence in support of an application for particular orders.

The terms are usually used where the orders sought are interlocutory – that is they are orders sought in addition to, and usually prior to, the main orders sought in the proceeding.

For example, if a plaintiff sought an adjournment of proceedings for four weeks because a witness was ill, the affidavit of support / affidavit in support would provide the evidence of that illness to the court.

 Affidavit in chief

An affidavit in chief is the main affidavit evidence in support of a party’s claim or defence in court proceedings. It should contain all the evidence required to make out the claim or defence.

A party may file many affidavits in chief in support of its case or defence. These may include multiple affidavits that are sworn or affirmed by the same deponent.

 Affidavit in reply

As its name suggests, an affidavit in reply is an affidavit in which a party replies to the opponent’s affidavit(s) in chief.

Affidavits in reply may be required to be limited only to answering new matters raised by the opponent’s affidavits in chief.

It is not necessary for a deponent of an affidavit in reply to have themselves made an affidavit in chief but, if they have, the deponent should not repeat the matters that are in their affidavit in chief. Instead they should confine their reply to answering new matters raised by the opponent’s affidavits in chief.