Administration - Affidavits Flashcards
(13 cards)
What is an affidavit in the context of probate?
A formal written statement of fact, signed under oath or affirmation, which may be submitted as evidence during a grant of representation application.
Who must sign the affidavit?
- The deponent (person making the statement)
- An independent solicitor or commissioner for oaths who also completes the jurat
What must a valid jurat include?
- Signature of the deponent
- Name, address, and qualification of the witness
- Signature and date
- Must appear immediately after the affidavit text
When are affidavits most commonly required in probate applications?
When there are doubts about the validity, execution, or interpretation of a will or codicil.
When is an affidavit of due execution used?
If the will lacks a proper attestation clause or there are doubts about compliance with s.9 Wills Act 1837.
Who usually makes the affidavit of due execution?
One of the witnesses to the will.
When is affidavit of knowledge and approval required?
If the testator was blind, unable to read, or appeared frail or vulnerable, raising doubt as to their knowledge and approval.
When is an affidavit as to date used?
If the will is:
- Undated
- Incorrectly dated
- Contains more than one date
One of the witnesses, confirming the correct execution date.
What does an Affidavit of Plight and Condition confirm?
The physical condition of the will when executed and when later discovered.
When is Affidavit of Plight and Condition needed?
If the will shows:
- Burn marks or tearing
- Pin holes or paperclip indents
- Missing pages or inconsistent numbering
When is affidavit of search needed?
If it appears that a document was intended to accompany the will, but it is missing, the PR must explain search efforts made to locate it.
What must be done if the original will or codicil is lost?
a copy may be submitted with an affidavit, showing:
- The will existed
- It was validly executed
- The copy reflects the testator’s intentions
Can a witness statement be used instead of an affidavit?
Yes. Since November 2020, a witness statement + Statement of Truth may replace affidavits in non-contentious probate matters.
