Is an affidavit made before an unauthorised person still valid?

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?

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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.