Affidavits

Question 1

What is an affidavit?

Answer 1

Formal written statement of fact which a person signs under oath

Question 2

What are the requirements for an affidavit?

Answer 2

• Signed by all parties and dated
• Completed and signed by the person witnessing (must be an independent solicitor or commissioner for oaths)
• Must follow immediately on from the text and not on a separate page

Question 3

When may an affidavit be needed?

Answer 3

Where there is a valid will but something about the document renders its validity or interpretation uncertain

Question 4

When will there be an affidavit of due execution?

Answer 4

When the PR believes that the will is valid, but it is not clear that the execution requirements of s9 WA have been complied with.

Usually provided by one of the witnesses.

Question 5

Who usually provides the affidavit of due execution?

Answer 5

Usually one of the witnesses

Question 6

What is the purpose of an affidavit regarding knowledge and approval?

Answer 6

To address doubts about K&A, e.g., blind or illiterate testator, or signature suggests frailty

Question 7

What can avoid the need for an affidavit regarding knowledge and approval?

Answer 7

Drafting the original attestation clause to reflect special circumstances

Question 8

What issues regarding the date can necessitate an affidavit of due execution?

Answer 8

• If date is missing
• If date is incomplete
• If more than one date is included
• If a client returns their will signed but not dated

Question 9

What is the purpose of an affidavit as to alterations?

Answer 9

To establish the timing of the alteration

Usually submitted by a witness

Question 10

What does an affidavit of plight and condition confirm?

Answer 10

Condition of will when it was executed and its condition following death

Question 11

What is the purpose of an affidavit of search?

Answer 11

To suggest that another testamentary document was supposed to be attached to the will

Question 12

What does NCPR 54 permit regarding a missing original will?

Answer 12

A copy of the will to be admitted to probate if there is a court order approving this

Question 13

What evidence should an affidavit include when a will is missing?

Answer 13

• Evidence that the will existed after deceased’s death
• Confirmation the will was correctly executed
• That the copy document submitted accurately records the testamentary wishes of the deceased

Question 14

What are practical considerations for affidavits?

Answer 14

Only an option where a suitable deponent can be located and is able and willing to provide the evidence required