An affidavit is a written form of evidence often used in court proceedings. It outlines the facts as you remember them and acts as a means of providing the Court with the evidence you want it to hear. Affidavits are commonly used in applications for probate or letters of administration.
Preparing an affidavit
Preparing an affidavit is not an easy task, so whilst you are allowed to prepare your own, you might prefer to seek legal advice. You can get legal advice from a private law firm, legal aid office or a community legal centre. Although court staff can assist you with court forms and the court process, they can’t provide you with legal advice.
Affidavits must be written according to strict protocols and it’s recommended you contact the court or a legal professional to determine the correct type of affidavit to use. For example, an affidavit should be typed in size 12 font, printed on only one side of the paper and each page must be numbered consecutively. An affidavit also needs to be divided into numbered paragraphs. It’s also encouraged to use separate headings in your affidavit to help break up topics or subject matters.
A person making an affidavit is called a ‘deponent’.
Length of an affidavit
The length of your affidavit will vary according to the complexity of your matter. Provided you include all the relevant facts, there is no need for it to be overly lengthy. One of the most important points to remember is to keep the information within your affidavit relevant to your case.
Whilst some individuals may prefer to provide a personal account of their evidence in court, there is often very limited opportunity to do so. By having everyone’s affidavits prior to the court date, the Court can operate more efficiently.
What to include in an affidavit
As a rule of thumb, an affidavit should only include facts. It shouldn't include opinions, views or beliefs of the person making the affidavit. An exception to this rule is when evidence is being given by an expert witness, for example a doctor or a psychologist. Additionally, any information that’s considered hearsay should be excluded from the affidavit.
Attachments, Annexures, Exhibits
If you refer to a document in your affidavit, you must attach a copy of the document (known as an annexure or exhibit) to the affidavit. Each annexure or exhibit must be labelled with a letter or number and be referred to in the affidavit accordingly. For example, Annexure 1 or Exhibit A. You must also number the annexures or exhibits consecutively. Each and every annexure or exhibit must have a statement signed by the deponent identifying the annexure or exhibit as the document referred to in the affidavit.
Signing an affidavit
When signing your affidavit, you should ensure you have a qualified witness present. Qualified witnesses include lawyers, Justices of the Peace (JPs) or Commissioners for Declarations. In the presence of the qualified witness, the deponent must sign the bottom of each page of the affidavit and make an oath or affirmation as to the truth of the affidavit’s contents. If any changes, including corrections, deletions or additions are made to the affidavit, the deponent and the witness must initial each alteration.
Applications for a grant of probate or letters of administration, are almost always accompanied by affidavits. An affidavit is an important legal document, and you won't want to make a mistake with it. If you find yourself in the position of needing to apply for a grant of probate or letters of administration, the team of expert lawyers at Willed can help you.