In life, people face commissioning or notarising affidavits periodically. They hear about this procedure on TV but sometimes lack a clear sense of what the process involves. Whilst it may seem intimidating, most commissioning and notarising of affidavits is both fast and inexpensive. Questions about the process or needing to book an appointment? Contact us today.
What is an Affidavit?
An affidavit is a document containing sworn written statements made by an individual, called an affiant, declarant or deponent. The affidavit is sworn under an oath of affirmation administered by a legally authorised witness known as a commissioner for oaths or a notary public. Once the affidavit is executed and notarised or commissioned, the document is a sworn affidavit that can be treated as evidence in court.
What is an Affidavit of Execution?
There are various types of affidavits. A common type includes an ‘Affidavit of Execution’, which is often used in real estate transactions and wills and estates procedures. An affidavit of execution is signed by a witness who attests that the:
• signing procedure occurred in a manner that is correct and compliant manner;
• witness knows the deponent who signed the original document (such as a will);
• document signing occurred freely and voluntarily by the deponent; and
• deponent understands the contents of the original document.
Affidavits of execution can become important legal documents in court proceedings. For example, during probate, if someone challenges the validity of a will, the judge may ask the commissioner or notary who signed it to testify under oath that the signing procedure of the affidavit was correctly followed. The process is a serious one and not just a “rubber stamp”.
Types of Affidavits
Apart from an affidavit of execution, other types of affidavits need swearing regularly. For example, these include affidavits of:
• Name change – used when an individual marries or divorces, this document proves a legal name change;
• Financial disclosure – employed in divorce proceedings where spouses officially reveal all their assets and debts to divide property and calculate child support;
• Insurance loss claims – used to prove a loss (actually called a proof of loss form) to an insurer, such as a stolen vehicle;
• Surviving joint tenant – transfers ownership where a right of survivorship exists;
• Marital, common law or separation status – employed in family law matters;
• Death – used to notify a bank or a court that a person has passed away if it is impractical to obtain a death certificate; and
• Service – employed in litigation that needs a sworn testimony to prove that a person received a specific document.
Some affidavits have other documents or records attached to it called ‘Exhibits’ which can include contracts, text messages, photos and pay stubs. Exhibits serve as evidence to support the contents of an affidavit.
Do You Need a Commissioner for Oaths or a Notary Public?
A commissioner for oaths’ stamp is only valid in the province he or she is authorised to certify documents in. Thus, a commissioner for oaths in Alberta may only certify documents that are used or filed in Alberta. If your affidavit requirement involves use or filing outside of Alberta, you then need a notary public.
Why Do You Need Certification by a Commissioner for Oaths or a Notary Public?
The commissioner for oaths or notary public validates the identity of the affiant which reduces the risk of forgery. A commissioner for oaths or notary public completes the jurat which appears at the end of the document. It describes when, where and before whom the swearing of the affidavit occurred. Further, the commissioner for oaths guarantees the voluntary signing of the affidavit occurred without coercion.
Who is a Commissioner for Oaths or Notary Public?
In Alberta, various individuals, by statute, legally have authorisation to be a commissioner for oaths including students-at-law, lawyers, notaries, judges, and police officers.
Swearing or Affirming Affidavits?
The commissioner for oaths or notary public does not certify the truth of the contents of the affidavit, the deponent does. Accordingly, when making an affidavit, you may elect to attest to the truth of the statements by swearing or affirming them.
For those who are religious, you may elect to swear your affidavit. Your commissioner or notary will ask: “Do you swear that the contents of your affidavit are true, so help you God?”
If you are not religious, you may choose to affirm your affidavit. Your commissioner or notary will ask: “Do you promise that the contents of your affidavit are true and solemnly affirm that this promise is binding on your conscience?” You should respond to either questions with: “I do”. Since affidavits establish legal rights, it is important to tell the truth. Pursuant to the Criminal Code, those who make a false affidavit may face a maximum of 14 years imprisonment.
What is the Process of Swearing or Affirming my Affidavit?
The deponent must appear personally before a commissioner for oaths. An identity requirement exists including presenting two pieces of valid identification. The identification required includes, for example, one piece of government issued valid ID, such as passport or driver’s licence. Next, the commissioner or notary administers the oath or affirmation, the deponent signs the affidavit, and the commissioner or notary signs and stamps under his or her signature. A notary will also seal over his or her signature.