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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Affidavits In Contested Will Cases


An affidavit is a written personal statement that a witness swears or affirms before an authorised witness for use as evidence in court. An affidavit can be filed with a court in a range of court proceedings, from property settlements to criminal cases. In contested will cases, an affidavit is the means through which a plaintiff or defendant presents evidence to the court to support their argument and version of events. In this way, an affidavit is similar to a witness statement or statutory declaration, but it differs in use, format and signature requirements. This article outlines the purpose of affidavits in contested will cases in Australia.

Affidavits In Contested Will Cases

An affidavit is an important document in any will dispute litigation. Affidavits are typically used in contested will cases as an alternative or prelude to oral testimony. They often form a substantial part of the evidence presented by each side of the dispute. On occasion, there will be no need for a witness to give oral testimony at all, as there is no call for cross-examination. However, when a witness is required to give oral testimony, the other party can use discrepancies between their written affidavit and testimony to undermine the witness’ evidence. A witness should refresh his or her memories of their affidavit before they give oral evidence, as it is easy to inadvertently confuse events while under cross-examination.

Form And Structure Of Affidavits

The form and structure of an affidavit depend on the purpose of the affidavit, and each court has a prescribed form of affidavit for each court proceeding. There are procedural requirements for the preparation of an affidavit, including service requirements and strict deadlines for filing with the court.

An affidavit should be in the witness’s own words, based on their recollection and knowledge. Additionally, an affidavit should be:

  • Neatly typewritten and legible;
  • Clear and well organised, with events described chronologically under organising subheadings;
  • Concisely written in short, relevant paragraphs and ideally shorter than ten pages; and
  • Proofread to avoid typographical, spelling and grammatical errors and factual inaccuracies.

Most importantly, an affidavit should be relevant to the matter in dispute. A solicitor can give advice on a specific affidavit, but generally, a claimant’s affidavit in a contested will matter should:

  • Demonstrate eligibility to contest the provisions of the will;
  • Demonstrate the claimant received inadequate provision under the will;
  • Name the beneficiaries of the will and eligible claimants;
  • Disclose the financial information of the claimant such as assets, liabilities and source of income;
  • Disclose the claimant’s current and future financial need;
  • Reveal any medical conditions that affect the plaintiff or family;
  • Explain the nature and history of the plaintiff’s relationship with the deceased;
  • Explain the background of the deceased’s family;
  • Detail any contributions that the plaintiff made to the deceased estate; and
  • Provide information about potential competing claims against the estate;

Preparing An Affidavit

A witness can prepare an affidavit with or without the assistance of a solicitor. In either case, the document must be affirmed or sworn in the presence of an authorised person. Authorised persons include a Justice of the Peace, public notary, legal practitioner, or a police officer of sergeant rank or higher. The authorised person will sign every page of the document and attach their contact details and qualification on the final page of the affidavit under the witness’ signature.

Swearing An Oath Or Affirmation

Historically, a witness avowed the honesty of a document through an oath or solemn declaration. The witness typically held their religion’s holy book (such as the Christian Bible or the Jewish Tanach) while swearing the oath. There is now also provision for the use of a secular affirmation. Swearing an affidavit has the same effect as swearing to tell the truth in court and carries similar penalties for perjury and false statement. If a person intentionally writes false evidence in their affidavit then they are liable for prosecution for the crime of perjury. When there is evidence of perjury, the courts may impose a sentence of imprisonment, especially when the witness committed perjury to pervert the course of justice.

Hearsay

In addition to being truthful, an affidavit must also include only the witness’s own experiences. A witness cannot give evidence in their affidavit on behalf of someone else or retell someone else’s story, as this is hearsay evidence. If the witness did not see or hear something themselves, they cannot swear it into evidence except for interlocutory applications made prior to trial.

Contact our contested wills team if you are preparing an affidavit for a will dispute case. Our wills and estates solicitors have extensive experience with preparing clients for court proceedings and the preparation of affidavits. Call our team on 1300 038 223 for advice on the type of information that you should include (and exclude) from the document to be clear, concise and persuasive.

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