This paper is designed for the guidance and general additional information about Justices and to assist in the execution of affidavits and declarations. It should be read in conjunction with the Justices Manual.

Please note that while the Manual is worded based on best practices (which is good), some aspects noted therein are not mandatory.

DEFINITIONS/GLOSSARY
(of words used in this document)

AFFIDAVIT   a written evidential statement, which is either sworn or affirmed.

AFFIRMANT  a person who testifies verbally or in writing on affirmation and affirms instead of taking an oath. This term is not commonly used. The term “deponent” is used more often, although “deponent” usually relates to a person swearing on the Bible.

AFFIRMATION   a method of attesting to the statements in the affidavit. Alternative to an oath.

COVER SHEET   The first page of the affidavit showing any parties names and nature of the document

(e.g. “Affidavit of Joseph Brown as to the execution of the will”)

DEPONENT    a person making a declaration under oath
(Oxford Dictionary)

• one who deposes to the truth (Blacks Legal Dictionary)
• one who gives under oath testimony ( Blacks Legal Dictionary)
• one who makes an oath ( Blacks Legal Dictionary)

EXHIBITS  separate documents, or other material referred to in the affidavit ( examples include wills, codicils, photos, agreements/contracts, plans, letters)

JURAT  (Modern term is “a statement by the taker”)- the wording at the end of the affidavit which shows the date and place of swearing/affirming, the method of attestation (“Sworn” or “Affirmed”) the date and the signatures of the person/s making the affidavit and the signature, name and status (e.g. Justice of the Peace) of the officer administering the oath or affirmation.

OATH   A declaration having God as a witness (Oxford Dictionary)

- a pledge- coupled with an appeal to a sacred or venerated object or an invocation to a supreme being to witness the words (Blacks Legal Dictionary). 

- There is no prescribed form of general oath. See Sec 16 for the Scottish oath.

PREAMBLE  the words appearing before the first paragraph of the affidavit showing name address occupation of the person and method of attestation ( swearing/affirming etc).

RULES GOVERNING AFFIDAVITS

While declarations are mainly used in local/national government and commercial matters such as insurance claims, Kiwi Bank and other bank matters, they are generally not acceptable to give written evidence in court or tribunal matters. In matters before a court or tribunal evidence is provided either verbally at a hearing, and in some cases, by affidavit.

The main rules relating to affidavits are to be found in the rewritten High Court Rules 2016 or the District Court Rules 2014, both of which are accessible online. There are also rules under the Family Court. The District Court Rules are modeled on the High Court Rules, and while having variation in Rule numbers, the wording is basically the same. In the information now set out, reference is to the High Court Rules only and shown as,  e.g. R5.5(1)- “R” meaning “Rule”. It is important to note that while the shape and general content of the document are not the responsibility of the officer administering the oath/affirmation, explanation is given for general information and guidance, as there are some matters that can be attended to at the time of signing. Generally, the Justice’s responsibility is mainly with the proper completion of the preamble and the jurat. See also the article on page 8 of the Justices Quarterly Number 4 (Vol 82) as to responsibilities of Justices) and Chapter 4.15 of the Manual (as at June 2015) as to contents of the affidavit.

The main rules relating to shape and form of affidavits cover (each are explained separately after this table):-

1. Cover sheet - R5.7(1)

2. Fastening of pages- R5.7(4)

3. Numbering pages- R5.7(3)

4. Margins –R5.5(1)

5. Initialling pages –R9.76(4)

6. Names under signatures – R5.6(b)

7. Names in jurat –R9.83

8. Interlineations, Erasures, and Alterations -R9.78

Dealing with those 8 listed items:-

COVER SHEET   This is the first page of an affidavit and contains any party name/s, and description of the document ( eg. “Affidavit of John Smith as to Contract”). It should also contain information at the foot of the page as to the party filing the affidavit (R5.16). This page is not numbered.

FASTENING OF PAGES   All pages of an affidavit should be fastened in the top left corner in a permanent manner ( usually a staple) with the cover sheet being the first page.

NUMBERING PAGES   All pages of an affidavit starting with the page after the cover sheet should be consecutively numbered, starting with “1”. ( usually at the top of the page but can be at the foot.) The Manual (see Chapter 4.12) refers to numbering e.g. as “1 of 2”. Note the Court Rules requires only consecutive number e.g. “1”

MARGINS  Pages of the affidavit should have a quarter page margin on the left-hand side. If the reverse side of the page is used then the same size margin should be on the right-hand side of the reverse page.

INITIALLING PAGES  Pages of an affidavit, other than the page which bears the signatures, should be initialed at the foot by both the deponent/affirmant and the officer/s administering the oath or affirmation.
NOTES
(a) the cover sheet need not be initialled. The manual refers to initials on the bottom right-hand corner, but anywhere on the foot of the page is acceptable.

(b) Initials only are required- full signatures and date are not required.

NAMES UNDER SIGNATURES. Every signature (both deponent/affirmant and officer/s) in the jurat should have their name clearly printed or stamped immediately under their signature. This is required to identify the various signatories. (R5.6(b))

NAMES IN JURAT   The name of the deponent may in some cases be required to be shown in the jurat- see explanation later under “JURAT” in that regard.

INTERLINEATIONS, ERASURES AND ALTERATIONS  In all cases, these should be initialed by the officer administering the oath or affirmation. In the case of an erasure, the word/s written over the erasure should be re-written in the left-hand margin and initialed. Note- while the manual refers to both deponent and Justice initialing changes, the Court Rules require only the initials of the person administering the oath/affirmation ( the Justice in our case)

PARTICULAR DETAILS IN AFFIDAVITS

PREAMBLE   The preamble should start “I” or “We” and show the full name, address (only need town or city, e.g. “of Christchurch”) and occupation of each person making the affidavit.

That detail should be followed by one of the following:-

1. “swear” (the former term “make oath and say” is still acceptable if swearing on the Bible).

2. “solemnly and sincerely affirm” (if the person elects to affirm).

3. If there is more than one person making the affidavit the word “severally” must appear before the words shown in 1 and 2 above. The authority for this is a reported case in re Bowes 1942 NZLR 292 (“NZLR” meaning New Zealand Law Reports).

4. If there are two persons making the affidavit and one swears and the other affirms suitable wording is “We, (name address and occupation of both persons) respectively severally swear and solemnly and sincerely affirm” (the wording should relate to the same order as the method adopted of the persons shown).

5. If there are more than two persons, and there is a combination of both oath and affirmation by the respective deponents, the wording can get unwieldy but the following would usually be accepted “We (name address and occupation of first two) severally swear and I (name address and occupation of the third person) severally solemnly and sincerely affirm”. Note-the words change depending of the method of attestation selected by the persons making the affidavit.

BODY OF AFFIDAVIT ( The evidence). This should appear in paragraphs with those paragraphs numbered consecutively. It is permissible where two or more people are making the affidavit (severally) to include a statement by only one of the deponents. Normally that should appear as the last paragraph and be preceded by a new preamble worded “ And I (name) for myself swear (or solemnly and sincerely affirm”). If that separate statement appears in some other place in the affidavit and the affidavit then continues with the evidence of all parties, the next paragraph after that separate statement should be preceded by a new preamble resuming the several oaths ( e.g. “And we the said (names ) further severally swear” or “severally solemnly and sincerely further affirm”).

JURAT  (Also called “Statement by the Taker”) One of two words should appear at the start of the jurat- either “Sworn” or “Affirmed”. You may see an opening word “Severally” here where two or more people are making the affidavit. This is acceptable but not required (see the New Zealand Law Reports case of re Bowes referred to in these notes).

Care should be taken that the wording of the jurat follows the choice of attestation shown in the preamble, i.e. if the person elects to “swear”, the preamble should show “swear” (or “make oath and say”) and the jurat should show “Sworn” and in the case of a person affirming the jurat should show “Affirmed”.

If the affidavit is by one person only then an example jurat would be:-

• Sworn (or Affirmed) at Christchurch this 31st day of May 2020 (deponent/affirmant’s signature)
• Before me (signatory’s name printed/stamped clearly, (Signature of officer administering), (officer’s name printed/stamped clearly)
• Justice of the Peace (Add your JP number)

If the affidavit is by more than one person separate jurats can be used, in which case the name of that signatory must appear in each jurat e.g “Sworn/Affirmed by (name) ….. this …..

OR ..if the affidavit is signed by all at the same time then one jurat can be used and worded Sworn (or Affirmed) by both (or all) of the persons named above this day of………. 20….

STATUS OF THE OFFICER ADMINISTERING THE OATH OR AFFIRMATION. The status of the officer must be shown. It is often the case a Justice will be presented with an affidavit where the document has been prepared allowing for different types of officers. E.g. A Solicitor of the High Court/ a Registrar of the High or District Court/ A Deputy Registrar of the High or District Court/ A Justice of the Peace.

It is important that any inappropriate offices are deleted, leaving only ONE office status. It is often observed that a Justice will sign showing he or she has all those titles!

You should add your Justice of the Peace number as well.

EXHIBITS AND EXHIBIT NOTES. Care should be taken to check to see if the affidavit refers to any exhibits. Exhibits, unless bulky, should be attached to the affidavit. 

NOTE:- in no circumstances should an original will or codicil be fixed to an affidavit, nor should the will/codicil be attached by means of a paper clip. Any marks on a will (e.g pinholes, paper clips, which could show some testamentary document was or may have been attached are required to be explained. See also “Important Note” later as to NOT writing on wills.

Exhibits should be clearly marked with the same identifying reference, e.g. “A” shown in the Affidavit.

While there are no fixed rules as to what identifier is used, the convention is that they are marked alphabetically and consecutively starting with the letter “A”.

Each exhibit MUST have an exhibit note. A sample exhibit note is:

This is the document marked “A” referred to in the annexed affidavit of John Brown of Christchurch Farmer, sworn (or affirmed as the case may be) this 31st day of May 2020 before me...

_____________________________________________

(Name of Justice printed/stamped- e.g. “J.M. Jones”)

Justice of the Peace.

NOTE OF CAUTION- in the June 2015 Manual ( as at the time of originally making these notes in November 2015), the example exhibit note on Page 54 ( Chapter 8.5) is wrong. It shows the word “declared’. In an affidavit, it should be either “sworn” or “affirmed” depending on the method of attestation chosen by the person.

The wording of an exhibit note for a will/codicil is different. In most cases, the person presenting an affidavit and will to the Justice administering the oath/affirmation will have received those documents from a solicitor who will have endorsed the correct wording. If it is not endorsed and/or you need to check this you could check with your local High Court Registry and ask for the wording of “Form 5 of Dobbie’s Probate and Administration Practice (6th Edition”) This book is the leading NZ textbook on probate and administration of estates. NOTE:- you cannot access this textbook online via Google etc, but all High Court Registry officers have a copy.

As with signing a jurat, remember to take care to delete any inappropriate status (e.g. Solicitor of the High Court) shown under your signature on the exhibit note/s.

IMPORTANT NOTE:- If signing an exhibit note on a will or codicil do NOT sign anywhere other than the exhibit note. There have been examples where Justices have signed and sometimes dated and even stamped all pages of a will and other cases where the Justice has had the person making the affidavit to sign the exhibit note, and in some cases all other pages of the will as well. This must not happen, as any extraneous writing on a will can be questioned and may require written explanation, either by Memorandum of Counsel Moving, or affidavit, depending on circumstance.

ADMINISTERING THE OATH OR AFFIRMATION

Oaths are covered by Section 3 of the Oaths and Declarations Act 1957. The use of the word “may” in that Act is important given the various religious beliefs of people.

While the convention is that the Bible etc is held in the right hand, Section 3 does not prescribe that the right hand must be used, nor does it prescribe the form of wording to be used.

In referring to using the Bible, the Old Testament or the New Testament, Section 3 states then oath should commence with the words “You swear by Almighty God that……”. It is not necessary to end the oath with “So help you God” as is suggested in “Affidavits” in our Manual.

That section of the Oaths and Declarations Act also states “ the oath may be administered and taken in any manner which the person taking it may declare to be binding on him”. This caters for persons who may wish to swear according to their beliefs ( e.g. using the Koran )

Affirmations are covered by Section 4 of that Act. In this section, the specific wording to be used is prescribed by that section. It is interesting to note that and there are different forms of wording for verbal and written affirmations. In the case of an affidavit, the words of the preamble to the affidavit are:-

“ I (name, address, occupation) solemnly and sincerely affirm…” or if there are two people…

“We (names addresses occupations) severally solemnly and sincerely affirm.”

It follows that in administering an affirmation to an affidavit, the question asked of the person at that time should be “Do you solemnly and sincerely affirm’ (that the content of your affidavit is true and correct?)

NOTE- The wording for an affirmation made when giving oral evidence is “ Do you solemnly sincerely and truly declare and affirm…”. If you see this wording as a preamble to an affidavit, correct it and initial in the left margin.

While it is good (and common) practice that the person making the affidavit sign their name before the officer administering the oath/affirmation, this is not a statutory requirement. In cases where the affidavit has already been signed before attending on the officer, and that officer asks the person to sign their name again, there could be a case where the reason for two signatures is questioned. If the affidavit is already signed, the oath/affirmation can be preceded with the words ‘Is that your full name and signature, and do you swear/solemnly and sincerely affirm….. etc. In that case, the person making the affidavit confirms their identity and acknowledges the signature is theirs.

You can take an extra step and ask the client to sign on a separate piece of paper to compare that signature with that in the jurat.

There is no statutory requirement that a pre-signed signature is deleted and the deponent re-sign the jurat. ( Chapter 8.4.2 of the Manual suggests crossing our any pre-signed signature and having the deponent re-sign). While best practice is the deponent should sign in your presence and most would not sign until they attend on the Justice, the asking of the preliminary words “is that your full name and signature” confirms the signature appearing.

There are various articles about checking the identity of the person who is making the affidavit. While best practice suggests you should be satisfied as to the identity of the person by the production of some form of photo identification ( eg a drivers licence or passport) this is not mandatory and you should not refuse to administer and oath because of lack of identification. See article on identity etc on Page 8 Justices Quarterly Number 4 Volume 82 on this point. Regardless of whether or not the identification is produced, it is a good practice to start the administration of the oath/affirmation using the words above i.e. “Is that your full name and signature and do your swear by Almighty God…… ( or “Is that your full name and address, and do you solemnly sincerely affirm”.

It is good practice to check the signature to see it aligns with the name shown in the preamble e.g. if the name is John Edward Smith and he signs as E.J Smith it suggests it would be queried. He may sign as J Smith- that is satisfactory. If he signed as J.E.K. Smith suggests he has not shown his full name in the preamble which he is required to do.

CHECKLIST!!

As a final check before you hand the affidavit back to the person presenting it:-

1. Are the pages fastened?

2. Are the pages numbered (other than the cover sheet) Note- only need “1” “2” etc not “1 of 2”

3. Does the preamble show a name address and occupation?

4. Does the preamble show with correct words the method of attestation ( e.g. “swear” or “solemnly and sincerely affirm”

5. If there are two or more deponents/affirmants, does the preamble contain “severally”?

6. Have all signatories (including you) initialled the foot of each page other than that containing the signatures? Note- initial only -full signatures and date not required.

7. Has the person making the affidavit signed the jurat.?

8. Does the signature match the name as shown? In some cases, it is hard to tell but if there is something obvious like the name is John Edgar Smith and he signs “E.J. Smith” the name should be checked. Another example is where the name is shown as John Smith and he signs as “J.E.Smith” indicating he has not shown his full name.

9. Have the names of each signatory (including you) been clearly printed/stamped under their signature?

10. Have you shown the place of swearing, and complete date in the jurat ( don’t abbreviate date e.g. use “January” not “Jan”.

11. Have you deleted inappropriate status titles which may be listed under your signature ( e.g. Solicitor of the High Court)?

12. Does the jurat/s match the preamble ( i.e if the preamble shows the person is swearing, then the jurat/s must show “Sworn” and if affirming then the jurat/s should show “Affirmed”)

13. Are there any exhibits? If so have you signed all exhibit notes, and deleted any inappropriate status titles listed under your signature?

14. Have you shown the place of swearing and complete date in any/all exhibit note/s?

15. If there are two people making the affidavit and there is only one jurat, does it show their names, or instead shows “both of the abovenamed deponents”. If there are more than two deponents “both” should read “all”

DECLARATIONS

Declarations are covered by the Oaths and Declarations Act 1957, in particular, Sections 7, 8 and 9 (which can be accessed online under New Zealand Legislation).

The High and District Court Rules do not govern this form of a formal statement as declarations, while perhaps being produced as an exhibit, are not used to give written evidence.

The form to be used for the commencement and end of a declaration is set out in the form specified under the First Schedule to the Act.

A declaration should commence:-

I (full name address and occupation) solemnly and sincerely declare that… or in the case of one declaration by two or more people, the word “severally” must appear in the preamble

and end with the words…

And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Oaths and Declarations Act 1957.

A declaration should have a jurat similar to that of an affidavit except for the word “Declared” which is used instead of “Sworn” or “Affirmed”.

The act does not specify the form in which an officer should administer the declaration but it is suggested that the following is acceptable:-

Do you solemnly and sincerely declare that the content of this declaration is true and correct? before the word “solemnly”.

This document is a guide. I am happy to assist if you any queries. My email address is 1944snick@gmail.com. 

Peter Fantham
Ph 021 841085