How to draft an affidavit

An affidavit is a written statement, sworn or affirmed, used as evidence in a proceeding. Everything difficult about drafting one follows from those last three words.

Because it is evidence, it is subject to the rules of evidence. A paragraph that would be inadmissible if you said it from the witness box is inadmissible in an affidavit, and the other side can apply to have it struck out — sometimes with an order that you pay the costs of the application. The drafting rules below are not house style. They are what keeps your evidence in.

The anatomy

The form is prescribed by the rules of the court you are filing in, not by a single national standard. In New South Wales it is Form 40 under the Uniform Civil Procedure Rules 2005. The differences between courts are real, and an affidavit drafted for one is not automatically in the right form for another. The structure, however, is consistent:

1. The heading. The court, the registry, the proceedings number and the parties, exactly as they appear on the originating process.
2. The deponent's details. Your full name, address and occupation.
3. The body. Numbered paragraphs of evidence.
4. The jurat. The block recording that the affidavit was sworn or affirmed, by whom, before whom, and on what date and at what place.

The jurat

The jurat causes more rejections at the registry than the contents of affidavits do. It must record the date, the place, the deponent's signature and the signature, name and capacity of the person before whom the affidavit was sworn or affirmed.

Three recurring errors:

• An undated jurat. The date is not optional and cannot be added later by someone who was not there.
• A jurat stranded on its own page. It must appear with some of the text of the affidavit, so that it cannot be detached from the document it relates to and attached to another.
• Unsigned pages. In New South Wales each page must be signed by both the deponent and the person before whom the affidavit is sworn, not merely the last one.

The witness completes the jurat. The deponent does not fill it in beforehand.

Sworn or affirmed

An oath is sworn on a religious text or by reference to a deity. An affirmation is a solemn promise with no religious element. The choice belongs entirely to the deponent, who does not have to explain it, and the two carry identical weight.

The witness administers whichever is chosen, and the deponent answers. The words vary between jurisdictions, but the shape is the same: the witness asks whether the deponent swears or affirms that the contents of the affidavit are true and correct to the best of their knowledge and belief, and the deponent says that they do.

It is worth saying that this step is frequently skipped in practice, with both parties treating the affidavit as a document to be signed rather than sworn. An affidavit executed in silence has not been sworn or affirmed at all.

Drafting the body

First-hand knowledge

Depose to what you saw, heard, did and read. Not what you concluded, not what you assume happened, and not what somebody told you unless you are permitted to and you say so.

Where you may depose to information and belief — the rules differ between courts and between interlocutory and final hearings — identify the source by name and say what you were told by whom. "I am informed by the site foreman, Peter Nguyen, and believe that the concrete pour was completed on 9 May." Not "the pour was completed on 9 May" when you were not there.

One fact to a paragraph

Numbered, short, in chronological order. Long paragraphs bundling four events together cannot be admitted or objected to selectively, which means an objection to one sentence can take the whole paragraph with it.

Conversations

Where a conversation matters, set it out in direct speech, as close to the actual words as your memory allows, and say what the limits of your memory are:

On 12 June 2026 I had a conversation with Mr Ellis in the site office. He said words to the effect: "We can't certify the claim until the ledger reconciles." I said: "Then tell me what's outstanding and I'll get it."

"Words to the effect" is the honest formulation where you recall the substance but not the exact wording. Reconstructed verbatim dialogue you cannot actually remember is worse evidence than an honest approximation, and it is exposed quickly in cross-examination.

What gets struck out

Struck out	Why
Argument and submission	That is what submissions are for; an affidavit gives the facts the submissions rely on
Opinion from a lay deponent	Opinion evidence is for experts, within their expertise, in a report that complies with the rules
Unattributed hearsay	Inadmissible unless permitted and properly identified as information and belief
Irrelevant material	Evidence must go to a fact in issue
Scandalous or oppressive material	Allegations that serve no forensic purpose invite an application and an adverse costs order

The discipline to apply while drafting: read each paragraph and ask what fact in issue it goes to. If you cannot name one, cut it.

Exhibits and annexures

These are not the same thing and are not attached the same way.

An annexure is attached to and forms part of the affidavit. Under the NSW rules it must be identified by a certificate endorsed on the annexure itself — not on a separate page — and signed by the person before whom the affidavit is made. The pages of the affidavit together with its annexures must be numbered consecutively in a single series.

An exhibit is a separate document. It is identified by a certificate attached to the exhibit, entitled in the same way as the affidavit, and signed by the person before whom the affidavit is made.

Refer to each in the body at the point it becomes relevant, and make the reference match the marking exactly. A body referring to "Annexure C" where the attachment is marked "Exhibit C" is the kind of inconsistency that gets a document sent back.

Emails, messages and screenshots

Electronic material is routinely the most important evidence in a matter and the worst handled. A few points that resolve most of it:

• Exhibit a chain in chronological order, oldest first, and say in the body which way it runs.
• Do not exhibit a screenshot where the underlying document can be produced. A printed email showing headers is better evidence than a photograph of a screen.
• For messages, say whose device the material came from, whose number or account is whose, and how the material was extracted. A thread of unattributed grey and blue bubbles proves very little.
• Where a screenshot is genuinely the only form available, depose to when you took it and what it depicts.

Correcting an affidavit

Once an affidavit is sworn, you do not amend it. An alteration made afterwards is not covered by the jurat, because the person who took the affidavit did not see it.

Where a change is needed before swearing, alterations should be initialled by the deponent and the witness at the time. Where it is needed after, the course is a further affidavit correcting the first. If the error is material and the affidavit has been filed or served, correct it promptly: an error corrected on your own initiative is a very different thing from one extracted in cross-examination.

Witnessing by audio-visual link

Affidavits can be witnessed remotely in most Australian jurisdictions. In New South Wales, section 14G of the Electronic Transactions Act 2000 (NSW) requires the witness to observe the signing in real time, to be reasonably satisfied that the document they sign is the same document or a copy of it, to sign it, and to endorse it with a statement specifying the method used and stating that the document was witnessed in accordance with that section.

One trap worth naming: in New South Wales, audio-visual witnessing does not of itself authorise electronic signing. Unless another NSW law permits an electronic signature for the particular document, the deponent signs in wet ink and the witness signs a counterpart or a scanned copy. Assuming that remote witnessing and electronic signing travel together is a common and expensive mistake.

Before you swear it

Read it through as though you were being cross-examined on it, because you may be. Every sentence should be one you can stand behind on the worst day of the hearing. Anything you find yourself wanting to qualify while reading, qualify on the page instead.

This note is general information about drafting affidavits. It is not legal advice, the rules differ between courts, and nothing here is a substitute for the rules of the court your affidavit is going to or for advice on your own matter.