Let’s just clarify… an Affidavit is a statement made under Oath. We can therefore rule out one area of confusion. The first two terms above are precisely the same.
And now the government has modernised part of the probate procedure by abolishing the need for any statement by executors to be sworn. Since the beginning of this year it has been sufficient if the statement to be filed at the Probate Office is declared, by its maker’s signature, to be true. So what is the difference? Is that enough?
Originally Oaths had a highly sacred significance, reinforced by the use of a sacred text and form of words, but these requirements have been progressively diluted of the years, as the threat of being burned in eternal damnation doesn’t seem to have the impact that it once did. And yet, perhaps strangely, the term “Oath” still persists. In all but the smallest probate matters, until last year an Oath would have been performed to verify the accuracy of the statistical components of a deceased’s estate. This would have been conducted in a brief ceremony before a Commissioner for Oaths, or a solicitor, in which the truth of a document was recognised by its author, by his holding a Testament and swearing “by almighty God”. As an alternative it has, for a great many years, been possible to offer almost any sincere confirmation that the document is true.
This all works because, either way, the compulsion to state the truth is backed not just by sanctions imposed through religion, but by the law of perjury, which in this modern world possibly has a greater immediate impact.
In legal proceedings, generally, facts that rely upon an individual’s memory or knowledge are most reliably and ideally proven by having the person give testimony in court: he would appear in person before a judge, at a time and place known to other interested persons, and must swear that his testimony will be true, must state his testimony so that all can hear it, and then be cross-examined by opposing parties. Generally, the written record of his testimony is taken down in written form by an official of the court, the court reporter. This procedure has developed over centuries to maximize fairness and the likelihood of obtaining the truth, but is expensive, troublesome, and time-consuming. Therefore, in many instances, especially in preliminary or uncontested proceedings, a court will allow testimonial evidence to be given in a document filed with the clerk of court.
The pursuit of the truth then still relies on the integrity of the participants. The declarant must be present before a qualified person and must clearly state his intention, that all persons will be entitled to recognise that the content of his signed, relevant, document is not false.
For more advice about executing and witnessing different types of documents contact John Pulham at:-
Messrs Pulham & Co