‘Taking an affidavit’ is the process of executing or signing an affidavit. This can also be called ‘making’, ‘swearing’ or ‘affirming’ an affidavit. The procedure is straightforward but can be easy to get wrong if you are unfamiliar with it.
Affidavits that are to be filed in the District or High Court must be either sworn or affirmed in accordance with the Oaths and Declarations Act 1957. That Act requires affidavits to be made on an oath (or affirmation) that the evidence they contain is the truth. An oath is like a promise, so the person making the oath must promise to tell the truth. Lying in an affidavit is perjury, and perjury is a crime.
The District and High Court Rules require that the affidavit oath is administered in New Zealand by either a court registrar, solicitor or justice of the peace. There are also special rules for affidavits that are sworn or affirmed outside of New Zealand.
To ‘swear’ an affidavit means to swear on the Bible (or just the Old Testament or New Testament) that the affidavit tells the truth. To ‘affirm’ an affidavit means to affirm the affidavit tells the truth.
The procedure for swearing an affidavit:
1. You initial each page of the affidavit in the bottom right hand corner except any cover page and the page at the end where you are to sign. You do not need to initial any exhibits attached to the affidavit.
2. You then sign your usual signature (if you have more than one signature) at the end of the affidavit. There should be a part saying ‘Sworn at (place) this (date) day of (month, year) by (your full name) before me:’. For example “Sworn at Hamilton this 28th day of August 2015 by Thomas Elton Stuart before me:”. You should sign on the right hand side of this part.
3. The person taking your affidavit should then ask you to place your hand on the Bible. Then that person should ask you “You swear by Almighty God that this (indicates full name) is your full name, that this (indicates signature) is your usual signature, that the contents of this your affidavit are true and correct and that these exhibits (indicates exhibits) are those that are referred to in your affidavit”?
4. If you are prepared to swear the affidavit is true and correct then you answer ‘yes’ or ‘I do’.
5. The person taking your affidavit should then put his or her signature under the words “before me” at the signing part of the affidavit. That person should also write his or her qualification to take the affidavit below his or her signature, ensure the affidavit is dated and that the place of swearing is recorded.
6. The person who takes the affidavit should also initial those same pages you should have initialled in the bottom right hand corner leading up to the signing page.
7. If the affidavit attaches exhibits, then there should be an exhibit note on each of those exhibits. That exhibit note should read “This is the exhibit marked (reference) referred to in the affidavit of (full name) sworn at (place) on the (date) day of (month, year) before me:” The person taking the affidavit should complete each exhibit note, sign after “before me” and write his or her qualification to take the affidavit below his or her signature.
To ‘affirm’ an affidavit is similar to ‘swearing’ one. The differences are that the affidavit should make reference to it being ‘affirmed’ rather than ‘sworn’, a Bible is not used, and the person taking the affidavit should ask you: “Do you solemnly, sincerely and truly declare and affirm that this (indicates full name) is your full name, that this (indicates signature) is your usual signature, that the contents of this your affidavit are true and correct and that these exhibits (indicates exhibits) are those that are referred to in your affidavit”?
Section 3(c) of the Oaths and Declarations Act 1957 also allows you to make an oath in any manner that you declare to be binding on you. That means you could swear an affidavit on the Koran or other religious text if you prefer, so long as you declare that making an oath in that way is binding on you. There need not be any religious connection with making an oath under section 3(c) though. I have even heard of someone making an oath upon singing ‘I’m a little teapot’.