Age and Affidavits

posted Mar 9, 2016, 11:58 PM by Michael Rees   [ updated Mar 10, 2016, 12:15 AM ]

From Bruce: My son sent me this after I asked him to check up on the question on age and Affidavits. He is a visiting lecturer in Law to Qld University so I thought he'd be a good source!


Hi Dad, there is no specific age requirement to swear or affirm an affidavit under the UCPR.

The test for an entitlement to swear/affirm an affidavit is whether the deponent is aware of the contents within the Affidavit, what they mean and what any implications are of swearing or affirming that affidavit. 

It may be important to note that rule 93 of the UCPR outlines the requirements of a person who is under legal incapacity. Rule 93 of the UCPR is as follows:
  1. A person under a legal incapacity may start or defend a proceeding only by the person's litigation guardian. 
  2. Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party's litigation guardian. 
  3. A party's litigation guardian who is not a solicitor may act only by a solicitor
In essence, a young child that may have the intellectual capacity to grasp the understanding of an affidavit would be able to swear that affidavit. It is a case by case basis. 

In Victoria (as a comparison to Qld):
  • A deponent under the age of 14 years may still swear or affirm an affidavit if it is satisfied that: 
  • he or she understands the nature of the oath/affirmation; and 
  • he or she understands the contents of the affidavit. 
  • The jurat should be noted to indicate the age of the deponent and that he or she understands these aspects. 
In the meantime I have attached a 2 page article by a Brisbane barrister Kylie Downes on affidavits that might assist. Let me know if you have any questions, I'll keep looking to see what else I can find.

Regards,
Shane Roberts
Partner