An affidavit is a written account of someone’s evidence in a legal proceeding. It is also known as a statement of facts. For an affidavit to be accepted in court, it must be witnessed by an approved witness. Since COVID-19, there has also been a shift to remote witnessing of legal documents like the affidavit in some states in Australia. This article sets out the key requirements for physically or remotely witnessing an affidavit.
Approved Witness
In Australia, an affidavit must be witnessed by an ‘approved witness’. This includes:
- court registrars;
- lawyers;
- justices of the peace;
- public notaries;
- judges; and
- police officers.
Generally, there are certain requirements around who can be a witness for legal documents.
Signatures
With modern technology, e-signatures are now available in addition to the traditional method of signing with a pen. E-signatures are essentially digital signatures. Examples include:
- signing on a tablet with a stylus; or
- capturing a digital version of a physical signature and incorporating it into a document.
While the usage of e-signatures has increased, there are still certain documents you cannot execute with one. Court documents, including the affidavit, cannot use e-signatures. As such you must still use, a traditional ‘wet’ signature when executing an affidavit.
Continue reading this article below the formProcess of Witnessing
Physical Witnessing
You must affirm the affidavit in the presence of your witness. This needs to happen before you sign the affidavit. The approved witness will ask you to swear or affirm that your affidavit’s contents are true. The difference between swearing and affirming is that the latter does not refer to God. An individual who believes in a God can choose to swear the affidavit. They may do so by holding the Bible or another relevant holy book to swear an oath.
Once the affidavit has been sworn or affirmed, you will sign each page of the document. Your approved witness will also sign each page of your affidavit after they have witnessed you signing it.
Remote Witnessing
Many state governments have since introduced legal changes to allow for remote witnessing of documents as a result of COVID-19. For example, remote witnessing of documents over an audiovisual link has been permanently legalised in New South Wales since November 2021, whereas this is yet to be the case in South Australia. Therefore, ensure the relevant state laws permit remote witnessing of documents prior to doing so.
General Considerations
On the very last page of your affidavit, you should include the following details:
- your full name and signature;
- whether the affidavit is sworn or affirmed;
- the day and location of the signing; and
- the full name and occupation of the authorised witness, and their signature.
It is important to check through the affidavit for any errors. If you notice errors in your affidavit when signing, you can cancel out the error and make the appropriate changes. Both you and your witness should leave your respective initials near the amendment.
Lastly, when signing a legal document such as an affidavit, it is advisable to sign in darker ink, such as black or blue ink. This helps to capture the signature more clearly, especially when scanning or copying the document for record purposes.
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Key Takeaways
Ensuring that your affidavit is witnessed correctly is important, especially if you require it for a legal proceeding. It is therefore crucial to meet requirements regardless of whether it is witnessed in person or remotely. With remote witnessing, it is also wise to double-check the requirements as they are fairly new.
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Frequently Asked Questions
An approved witness includes court registrars, lawyers, justices of the peace, public notaries, judges and police officers.
Affirming an affidavit makes no reference to God whereas swearing does. When swearing an affidavit, this normally involves holding the Bible or a relevant holy book when making an oath.
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