Statutory Declaration / Declaration Letter / Deed Poll


STATUTORY DECLARATION, AFFIDAVIT, AFFIRMATION AND DEED

 

These documents are written statements. They are commonly used as part of the evidence collected by lawyers. There is very little difference between the two types of document, except for the method by which they were made. 

 

What is a Statutory Declaration?

A statutory declaration is an affirmed statement by its author or declarant. The claims or statements of facts asserted are believed to be true. Statutory declarations are often utilized to allow someone to assert that a certain claim is valid and true to fulfill some legal conditions, where the evidence is lacking. The formalities of statutory declarations vary depending on the jurisdiction, in general, it is less onerous than that of an affidavit / affirmation - a declaration can be made in front of a lawyer or a Justice of the Peace.

 

What is an Affidavit?

An Affidavit is a written statement of facts based on certain events as the author recalls them into memory and is sworn in front of legal testifying authority. It is declared to be authentic with the help of affixing the author’s signature as he or she is being witnessed by a Commissioner of Oaths. This move will verify the truth of the claims in the affidavit and subjects the author of such to perjury charges if it is found to be false. It is usually required during court sessions and proceedings.  

 

What is an Affirmation?

An affirmation is also a statement of facts made by a person under oath. A Catholic or a Christian should make affidavits. People of other religious beliefs or no religious belief should make affirmations. 

 

What is a Deed?

Deeds are specialty documents that only take effect if formalities prescribed under the law are followed and by which an interest, right, or property passes or is confirmed or an obligation binding on a person is created or confirmed. Common law distinguishes between instruments which are deeds and those which are contracts merely signed underhand.  By law, some written contracts must be entered into as deeds, otherwise they are invalid and unenforceable.  These principally are:

  • transactions relating to land.  With certain exceptions, this means that all conveyances, transfers, mortgages, charges, leases, and surrenders of land or any interest in land must be by deed; and
  • making a valid power of attorney.

There may be situations where a deed is preferred to a contract underhand, even though there is no actual legal requirement for it to be so:

  • a deed will generally be enforceable in the absence of valuable consideration; and
  • the limitation period for actions brought under a simple contract is six years from the date on which the action accrued whereas the period is extended to twelve years in the case of a deed.

The making of a deed is the execution of a document in the most formal manner possible.  It is required in a limited number of circumstances where it is particularly important that the parties understand the legal consequences of what they are about to enter into.  A deed is a contract made under seal, however, it should be noted that not all contracts under seal are necessarily deeds. For example, a share certificate is under seal but is not a deed. 

A deed may:

  • effect the transference of an interest, right or property; or
  • create an obligation binding on some person or persons; or
  • confirm some act whereby an interest, right or property has already passed.

Apart from the contents, the basic requirements of a deed are that it must be in writing and be signed, sealed and delivered.

 

Delivery of a Deed

A deed that has been executed by an individual or a company must also be delivered in order to be effective, unlike a contract that takes effect on the exchange of the parties' respective counterparts. Delivery requires that the person expressly or impliedly acknowledges, by words or conduct, an intention to be bound by its provisions. Delivery is a technical term in the context of the execution of deeds and should not be confused with physical delivery. Before delivery, the deed is revocable and not effective.  After delivery, the party who has executed it is bound and cannot withdraw from it.

If execution and delivery are to be effected together at the completion meeting the execution clause should include the words “and delivered” (whether the person executing the deed is an individual or a Company).  If a counterparty is using an agent to execute and/or deliver the deed on his behalf the agent must be properly authorised to do so.