Affidavits

Question 1

What is an affidavit?

Answer 1

A formal written statement of fact which a person signs under oath - they swear or affirm that contents of document are true.
Legal requirement for making an affidavit is authenticating the statement is:
- signed by all parties and dated
- completed and signed by person witnessing (must be an independent solicitor or commissioner) and their names, address and qualification must be stated
- must follow immediately on from the text not on separate page

Question 2

When are affidavits required?

Answer 2

Where there is a valid will but something about document which renders its validity or interpretation uncertain - original will is submitted with affidavit which provides confirmation to Probate Registry of circumstances surrounding drafting and execution of will.
Affidavit will relate to one of the following:
* Compliance with Wills Act
* Date
* Knowledge & Approval
* Physical condition of will

Question 3

Affidavit and compliance with s.9 Wills Act?

Answer 3

• Affidavit of due execution would be used where PR believes will to be valid, but not clear that execution requirements have been complied with (e.g., signature is oddly placed)
  
  • original will is submitted with affidavit
  • will usually be made by one of witnesses and will confirm that will was executed in accordance with formalities required
  • if probate registry accepts evidence, application for grant can proceed.

Question 4

Affidavit and Knowledge and Approval?

Answer 4

Where will has been properly executed and contains a standard attestation clause, this raises a presumption of K&A
* However, if there is reason to doubt (e.g., testator was blind), an affidavit of due execution may be required
- affidavit would usually be made by one of witnesses and confirm circumstances in which will was executed (e.g., read out loud)
- no need for affidavit if original attestation clause is drafted to reflect special circumstances under which will was signed

Question 5

Affidavit and Date?

Answer 5

Probate Registry will need to be clear of date will was signed in order to be certain will submitted is last will of testator. Doubt of date may arise where date is:
- missing
- incomplete
- more than one date is included
Affidavit of due execution made by one of witnesses to confirm correct date can be submitted with original will

Question 6

Affidavit and Physical condition of will?

Answer 6

Alteration are effective if made before will was executed and an affidavit as to alterations could be submitted by one of the witnesses to establish timing of alteration
- in abscene of affidavit evidence, PRs will rely on presumption regarding timing and interpretation and common law when deciding how to distribute testator’s asset

Affidavit used to confirm timing of alterations made to will

Question 7

What should happen in situations where will shows to be incomplete or tampered?

Answer 7

• An affidavit of plight and condition or attempted revocation - should be signed by someone who is able to confirm condition of will when it was executed and condition later when found following death
• If evidence to suggest another testamentary document was supposed to be attached to will, possible that an affidavit of search may be required to confirm steps taken to locate missing documents - enquires and searches must be made and PRs would confirm this

Physical signs that show will may be incomplete or tampered: pin holes, paperclip identation, non-consecutive page/clause and signs that an attempt has been made to revoke will (e.g., burning or tearing)

Question 8

What happens if original will is missing?

Answer 8

Must be addressed before making grant application - NCPR permits copy of will or codicil to be admitted to probate if there is a court order approving this.
Following affidavit should be applied when applying for court oder:
* evidence that will/codicil existed after deceased’s death (or facts which rebut presumption that missing will was revoked suring testator’s lifetime)
* confirmation that will/codicil was correctly executed and
- that copy document submitted accurately records testamentary wishes of deceased

witness statements supported by statement f truth can be submiited as an alterntaive to affidavit evidence