AFFIDAVIT
A written statement of facts voluntarily made by an affiant under an oath or affirmation administered by a person authorized to do so by law.
Distinctions
An affidavit is voluntarily made without any cross-examination of the affiant and, therefore,
is not the same as a deposition, a record of an
examination of a witness or a party made either
voluntarily or pursuant to a subpoena, as if the
party were testifying in court under cross-exam-
ination. A pleading—a request to a court to
exercise its judicial power in favor of a party that
contains allegations or conclusions of facts that
are not necessarily verified—differs from an affi-
davit, which states facts under oath.
Basis
An affidavit is based upon either the per-
sonal knowledge of the affiant or his or her
information and belief. Personal knowledge is
the recognition of particular facts by either
direct observation or experience. Information
and belief is what the affiant feels he or she can
state as true, although not based on firsthand
knowledge.
The Affiant
Any person having the intellectual capacity
to take an oath or make an affirmation and who
has knowledge of the facts that are in dispute
may make an affidavit. There is no age require-
ment for an affiant. As long as a person is old
enough to understand the facts and the signifi-
cance of the oath or affirmation he or she
makes, the affidavit is valid. A criminal convic-
tion does not make a person incapable of mak-
ing an affidavit, but an adjudication of
INCOMPETENCY does.
Someone familiar with the matters in ques-
tion may make an affidavit on behalf of another,
but that person’s authority to do so must be
clear. A guardian may make an affidavit for a
minor or insane person incapable of doing so.
An attorney may make an affidavit for a client if
it is impossible for the client to do so.When nec-
essary to the performance of duties, a PERSONAL
REPRESENTATIVE, agent, or corporate officer or
partner may execute an affidavit that indicates
the capacity in which the affiant acts.
A court cannot force a person to make an
affidavit, since, by definition, an affidavit is a
voluntary statement.
The Taker of the Affidavit
Any public officer authorized by law to
administer oaths and affirmations—such as city
recorders, court clerks, notaries, county clerks,
commissioners of deeds, and court commission-
ers—may take affidavits. Justices of the peace
and magistrates are sometimes authorized to
take affidavits. Unless restricted by state law,
judges may take affidavits involving controver-
sies before them.
An officer cannot take affidavits outside of
the particular jurisdiction in which he or she
exercises authority. The source of this authority
must appear at the bottom of the affidavit. A
notary, for example, would indicate the county
in which he or she is commissioned and the
expiration date of the commission.
An official seal is not essential to the validity
of the affidavit but may be placed on it by the proper official.
The Oath or Affirmation
Unless otherwise provided by statute, an
oath is essential to an affidavit. The statement of
the affiant does not become an affidavit unless
the proper official administers the oath.
When religious convictions prevent the affiant
from taking an oath, he or she may affirm
that the statements in the affidavit are true.
Contents
There is no standard form or language to be
used in an affidavit as long as the facts contained
within it are stated clearly and definitely. Unnecessary
language or legal arguments should not
appear. Clerical and grammatical errors, while
to be avoided, are inconsequential.
The affidavit usually must contain the
address of the affiant and the date that the statement
was made, in addition to the affiant’s signature
or mark. Where the affidavit has been
made is also noted. When an affidavit is based
on the affiant’s information and belief, it must
state the source of the affiant’s information and the grounds for the affiant’s belief in the accuracy
of such information. This permits the court
to draw its own conclusions about the information
in the affidavit.
An affiant is strictly responsible for the truth
and accuracy of the contents of the affidavit. If
false statements are made, the affiant can be
prosecuted for perjury.
Functions
Affidavits are used in business and in judicial
and administrative proceedings.
Business Generally affidavits are used in
business whenever an official statement that
others might rely upon is needed. Statements of
the financial stability of a corporation, the pedigree
of animals, and the financial conditions of
a person applying for credit are examples of affidavits
used in the commercial world.
Judicial Proceedings Affidavits serve as evidence
in civil actions and criminal prosecutions
in certain instances. They are considered a very
weak type of evidence because they are not
taken in court, and the affiant is not subject to
cross-examination. Their use is usually restricted
to times when no better evidence can be
offered. If a witness who has made an affidavit is
not available to testify at a trial, his or her affidavit
may be admitted as evidence. If the witness
is present, his or her affidavit is inadmissible
except when used to impeach the witness’s testimony,
or to help the witness with past recollection
of facts.
Affidavits are also used as evidence in ex
parte proceedings such as a hearing for the
issuance of a TEMPORARY RESTRAINING ORDER
or an order to show cause. The expeditious
nature of such proceedings is considered to substantially
outweigh the weak PROBATIVE value of
the affidavits. In addition, there is normally a
subsequent opportunity in the course of litigation
for the opposing party to refute the affidavits
or cross-examine the affiants.
An affidavit based on the knowledge of the
affiant is accorded more weight than one based
on information and belief. When admissible,
affidavits are not conclusive evidence of the facts
stated therein.
Administrative Proceedings Affidavits are
frequently used in administrative and QUASIJUDICIAL
proceedings as evidence when no
objection is made to their admission and there is
an opportunity for cross-examination.
Affidavit for the Solicitation of Proxies
AFFIDAVIT
SOLICITATION OF PROXIES
State of _________________
County of ______________
I, ____________________________________________________ , being first duly sworn, depose and say:
1. My name is ________________________________________________________________________.
2. I am engaged in the ___________________________________________________________________ business and my office
address is ____________________________________________________________________________________________ .
3. I desire to vote proxies for the following claims in the following amounts at the meeting of creditors of ______________________
__________________________________________ , above-named debtor, to be held on _________________________ (date).
4. A copy of the solicitation of each of the proxies is attached.
5. No consideration has been paid or promised by the affiant proxy holder for the proxies.
6. There is no agreement between the proxy holder and any other person for the payment of any consideration in connection with
voting the proxy, or for the sharing of compensation with any person, or for the employment of any person as attorney,
accountant, appraiser, auctioneer, or other employee for the estate or, if there is an agreement, other than one to share
compensation with a member or regular associate of the proxy holder’s law firm, state that there is an agreement and give
particulars.
7. ___________ (If the proxy was solicited by a person other than the proxy holder: A statement signed and verified by the solicitor
that no consideration has been paid or promised by the solicitor for the proxy and a statement __________________________
(state as in paragraph 6) is attached).
8. __________ (If the solicitor or proxy holder is a committee: A statement signed and verified by each member as to the amount
and source of any consideration paid or to be paid to such member in connection with the case other than by way of dividend on
each members claim is attached).
Dated: ____________________________________________.
__________________________________________________
Signature
__________________________________________________
Address
(Jurat)
(Attachments)
Affidavit
STATE OF __________________________________ COUNTY OF __________________________________
BEFORE ME, the undersigned authority, _____________________ [name and capacity of officer before whom affidavit is sworn],
on this _____________________ [day of month] day of _____________________ [month], 20____, personally appeared
_________________ [name of affiant], known to me to be a credible person and of lawful age, who being by me first duly sworn,
on ________ [his or her] oath, deposes and says: _________________________________ [set forth statement of facts].
_____________________________ [signature of affiant]
_____________________________ [typed name of affiant]
_____________________________ [address of affiant]
Subscribed and sworn to before me, this _________________ [day of month] day of _________________ [month], 20____.
[Seal] _____________________________ [signature of officer]
_____________________________ [typed name of officer]
_____________________________ [title of officer]
My commission expires: ______, 20____
