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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

6 things to know about Affidavits

Below, we answer the top 6 frequently asked questions about Affidavits.

1. What is an Affidavit?

An Affidavit is a legal document that contains a true written and signed statement, which may be used as evidence in a court or tribunal.

An Affidavit is similar to a statutory declaration or a witness statement, in that all contain written and signed statements that are used as ways of giving evidence. However, they each have different uses, formats and signing requirements.

2. What is the purpose of swearing an Affidavit?

Affidavits are mainly used in Court proceedings. They are a written alternative to a person attending Court to give oral evidence in the witness box.

Affidavits can be used to evidence, or prove, a number of things. For example, they are often used for people to tell their ‘story’ to the Court. This type of Affidavit will set out in detail the person’s version of events, which is then filed with the Court.

They are also commonly used to prove that legal documents have come to the attention of other people, known as an ‘Affidavit of Service’.

If a person intentionally gives evidence in an Affidavit that they know to be false, then they may be prosecuted for the crime of perjury, as making an Affidavit has the same truth requirements as giving oral evidence in Court.  

The penalties for perjury can be severe and the Courts generally impose a sentence of imprisonment, unless exceptional circumstances exist.

3. How to write an Affidavit

The content and style will depend on the type of Affidavit required and what is needing to be achieved.

However, generally speaking, Affidavits should be:

Your story

The content must generally be from your own knowledge and recollection, and in your words. You generally cannot speak on behalf of someone else in your Affidavit, as this is known as hearsay evidence.  

For example, to prove that your brother said something rude about you, you cannot include in your Affidavit that your sister told you she overheard your brother saying those things.

As you did not hear those words yourself, you cannot give evidence that those words were said. There are a few exceptions to this rule, including Affidavits made for use in applications made prior to trial (interlocutory applications). Nonetheless, hearsay is best avoided where possible.

Legible

Handwritten Affidavits should be avoided, if possible.  

Well organised

Dates or events should normally be detailed chronologically, with clear headings where appropriate.

Concise

Avoid long paragraphs and try to be as clear as possible. A good tip is to have only one event per paragraph.

Proof read

It is important to make sure that you have not repeated yourself, there are no spelling mistakes, and that all sentences make sense.

Relevant  

The content must be limited to those matters that will assist the Court to determine the disputed facts in the proceeding. Accordingly, avoid information overload! Keep in mind, the Courts have limited time so they do not like having to read unnecessarily long Affidavits.

4. Can I write my own Affidavit?

Anyone can prepare their own Affidavit, although it must be sworn or affirmed in front of an authorised Affidavit taker (see below, “How to swear or affirm an Affidavit”).

The form of the Affidavit will depend on the type of legal proceedings. Each Court has their own prescribed form of Affidavits, and this information is readily available on all Court websites where Court forms are located.

For example, here is a link to the Family Court of Australia containing information on preparing an Affidavit.

Each Court or Tribunal also has specific rules regarding requirements that must be followed. Accordingly, please refer to the guidelines set out on the appropriate Court or Tribunal’s website when preparing your own Affidavit.

5. How to swear or affirm an Affidavit

Your Affidavit must be signed by you in the presence of an authorised Affidavit taker, and you must either:

  • Swear or promise by the name of Almighty God or a god recognised by your religion (known as an oath).  This oath is traditionally made whilst holding a Bible or other holy book recognised by your religion (e.g. Torah, Koran). However, this is not required by law; or
  • Affirm that the information is correct (known as an affirmation).

The authorised Affidavit taker must watch you sign the Affidavit at the time of signing. You cannot sign it and later bring it in to be witnessed.

The authorised Affidavit taker will ask you whether you want to swear or affirm your Affidavit and, depending on which option you chose, they will direct you about what to say in order to make the oath or affirmation.

After that, they must legibly write their name, address and qualification underneath their signature on the final page of the Affidavit, as well as signing at the bottom of every page of the Affidavit.

There are various people who are authorised to witness Affidavits, including:

  • Justice of the peace or a bail justice;
  • Legal practitioner;
  • Police officer of or above the rank of sergeant or for the time being in charge of a police station; or
  • Public notary.

6. What to do after swearing your Affidavit

Affidavits are key documents in any Court proceedings. They can form a substantial part of the evidence that you will be relying on to support your case. They also have a lot of procedural requirements, including strict deadlines for when they must be filed with the Court, and often need to be provided to the other party in specific ways.

Accordingly, you should get legal advice as soon as possible. At Sharrock Pitman Legal we can help you understand the requirements of your Affidavit and advise you on your options.

How can Sharrock Pitman Legal help me?

As Accredited Specialists in Commercial Litigation, we have extensive experience assisting customers with Court proceedings and preparation of Affidavits. If you require advice or assistance, please contact Simon Matters on 1300 205 506 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

,

.

Simon Matters

For further information contact

Simon Matters

Simon is a Special Counsel at Sharrock Pitman Legal.

He is an Accredited Specialist in Commercial Litigation (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not-for-Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Litigation [Courts & Tribunals]

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.