What is an affidavit?
An affidavit is a written account of someone’s evidence or a statement of facts (as they know them to be).
It is a written promise or oath, that is voluntarily made by a person — who is referred to as the deponent — and is administered (effectively witnessed and endorsed) by a person who is authorised by law to do so. It is only valid if it has been made voluntarily and without any coercion.
The primary purpose of an affidavit is to provide evidence or information that is sworn to be true in court and/or tribunal proceedings.
What kind of evidence should be included in the affidavit?
Sometimes the court or tribunal, or rules governing the action can call for specific evidence to be in the form of an affidavit. In these cases close attention should be paid to what is required to avoid irrelevant information.
An affidavit should only include information that is relevant to the matter it has been created for. This is similar to, for example, if you were giving evidence in a court, you would only be able to provide information that is relevant.
Generally, this information should be firsthand knowledge of the circumstances described. This means that it should only include information that the witness has actually seen, heard, felt, smelled or tasted.
Including irrelevant or unfocussed information can cause the applicability or strength of the evidence to appear weak, and in extreme examples causing the evidence to appear confused.
An affidavit can also exhibit supporting documentary evidence in order to confirm the contents of the affidavit, and equally an affidavit can be used primarily to place a document before the court or tribunal to confirm it is true and correct copy of the original document called for by the court.
What makes an affidavit valid and able to be used in court proceedings?
In order for an affidavit to be used in proceedings it needs to be either sworn or affirmed in the presence of an authorised witness. It must also have been created voluntarily.
People who can be an authorised witness for the purposes of an affidavit include, lawyers, Commissioners for Declarations and Justices of the Peace.
An affidavit can be an extremely important document in legal proceedings, so ensuring that it has been created under the correct conditions is vital.
Writing an Affidavit
How should an affidavit be written?
An affidavit should be concisely written with just the relevant information. The information should be in chronological order to avoid confusion and it must be the truth (and nothing but the truth). This ensures that the court or tribunal (as well as the parties involved) has all the relevant information it needs to allow it to make an appropriate determination.
You should avoid repeating yourself within the document, along with including information unrelated to the overall case.
Remember to proofread your affidavit to ensure there are no grammatical errors or misspellings.
The affidavit should also include information about yourself, including:
- your name;
- your current address;
- your current occupational status (including what your occupation is);
- details of the evidence and the general story;
- the legal stamps and witnessing of authorised witnesses; and
- your signature.
What is and isn’t considered affirmative evidence in an affidavit?
Besides the formal legal aspects of the document, your story should be solely based on your personal experience and what you properly saw.
Information such as your personal recollections of the events, when the events took place, the locations, names, as well as other witnesses that may assist in proving your point. Be as straightforward, confident, and concise as you can.
Refrain from generalising the situation, repeating the evidence, using insulting remarks against anyone, hypotheticals and guesses. Do not let your emotions get the better of you — simply tell your side and story without including anything else that could possibly make you look bad before the court. An affidavit should not be used as a vehicle to make arguments or sway opinion.
Tips on what you should and shouldn’t do when creating an affidavit
DO:
- Understand exactly what is written in the document before signing it.
- Make sure that everything in the affidavit is truthful and sworn (or affirmed) to be true and correct.
- Keep it honest and straightforward, and make sure to keep the evidence relevant to the case.
DO NOT:
- Write an affidavit without understanding future or ongoing requirements.
- Include information that you don’t know about. You may be cross examined by the other side during the proceedings, so it’s important that the things you put into your affidavit are true and accurate.
- Leave out any relevant information. The court needs to know all the relevant information in order to decide the legal dispute.
Do you need help with an affidavit?
The contents of an affidavit are extremely important. Their primary purpose is to give sworn evidence that can make the critical difference between success or failure, winning or losing. It is virtually always advisable to have the right professional legal advice and assistance in preparing an affidavit and exhibits for this reason.
