Affidavit

• Author: Jeffrey Lehman, Shirelle Phelps

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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-examination. 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 affidavit, which states facts under oath.

Basis

An affidavit is based upon either the personal 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

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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 requirement for an affiant. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid. A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of INCOMPETENCY does.

Someone familiar with the matters in question 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 necessary 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...