Form 72B – Affidavit (Motion for Payment out of Court)

Jurisdiction: Country: Canada | Province/State: Prince Edward Island

What is a Form 72B – Affidavit (Motion for Payment out of Court)?

Form 72B is a sworn affidavit you use to ask the court to release money it holds. In Prince Edward Island, the court sometimes holds funds paid into court during a case. That money might come from a settlement, a tender of payment, a judgment, or a stakeholder who paid funds into court. If you want those funds released, the court needs evidence. Form 72B is that evidence. You set out the facts that show who should get the money, and why.

You will use this affidavit with a motion for payment out of court. The motion asks the court for an order that directs the court to pay out funds to a named person. The affidavit supports the motion by proving your entitlement and the amount to be paid.

Lawyers file this form often. Self-represented parties can also use it. Typical users include plaintiffs, defendants, judgment creditors, estate representatives, trustees, guardians, insurers, mortgagees, and business owners. If a minor or a person under a disability is involved, a litigation guardian or representative will usually file it.

You would need this form when funds are in the custody of the court and you want them released. The court holds money to protect all sides until the judge or the rules allow payment out. Your affidavit shows the court there is no dispute, or that you have legal entitlement under a judgment, consent, or statute.

Common scenarios:

• A defendant pays the claimed amount into court to stop interest. You settle, and you want the money.
• A stakeholder deposits funds into court because two parties claim the same money. The court decides or the parties consent, and one party asks for payment out.
• A mortgage sale creates surplus funds paid into court.
• A claimant proves entitlement to the surplus and applies to receive it. Settlement funds for a child are paid into court. The court approves how the funds will be held or released, and the guardian files an affidavit to support the release.
• A garnishee pays seized wages into court. The creditor seeks payment out to satisfy the judgment.

In all cases, the court needs clear, sworn facts. Form 72B supplies those facts in a structured way. It identifies the case, the amount held, the basis for payment, and the person to receive it. It also attaches the proof needed to back your request.

When Would You Use a Form 72B – Affidavit (Motion for Payment out of Court)?

Use Form 72B when you need the court to release money it holds in a Prince Edward Island court file. You rely on it when the registry will not release funds without a court order or the consent of all parties. If there is any doubt about who should be paid, you need a motion and a supporting affidavit.

You would use this affidavit after a judgment awards you money that was already paid into court. Your affidavit confirms the judgment, the amount, and any interest to the payment date. You also confirm that there are no other claims to those funds.

You would use it after a settlement where the defendant paid the settlement amount into court. Your affidavit explains the settlement terms and shows that the conditions for release have been met. If you settled a personal injury claim for a minor, your affidavit explains the court’s approval and the directions for handling the funds.

You would use it when a stakeholder paid money into court due to competing claims. For example, an insurer might pay into court because two claimants demand policy proceeds. After the court decides, you file Form 72B to show you are the proper recipient under the decision.

You would also use this form in mortgage sale or foreclosure contexts. Surplus sale proceeds may sit in court until claims are resolved. When your claim to the surplus is proven, your affidavit supports the payment out.

You may need this affidavit where legislation required a deposit. For example, a party may deposit security in a court file. When the purpose of the security ends, you ask for its return. Your affidavit proves the conditions for release.

Judgment creditors use this affidavit when a garnishee pays seized amounts into court. Your affidavit shows the outstanding judgment, the payments received, and the balance due. You ask the court to release the garnished sum towards the judgment.

Business owners may need this affidavit when a supplier dispute leads to a payment into court. Once you resolve the dispute, you ask the court to release the funds to the correct business.

In short, you use Form 72B any time you need to prove, under oath, that the court should release money held in your case. If the registry cannot release the funds on request, this is your route.

Legal Characteristics of the Form 72B – Affidavit (Motion for Payment out of Court)

Form 72B is an affidavit. That means it is a sworn or affirmed statement of fact. It is legally binding because you swear or affirm that its contents are true. If you make a false statement, you risk penalties for perjury. The court relies on your affidavit to decide whether to release funds. Your signature must be witnessed by a commissioner for oaths, notary public, or other authorized person in Prince Edward Island.

Enforceability comes from the court’s order, not the affidavit itself. Your affidavit supports the motion. If the judge grants the motion, the order will direct the court to pay out funds to a named payee. The registry or the court’s financial officer will follow the order. They can only release funds as the order directs.

The affidavit must be complete and clear. It should identify the file, the parties, the deposit, and the legal basis for payment. It should confirm service on affected parties, or include their consent. It should show that there are no outstanding claims to the funds, or explain how the order addresses them. It should provide a clean calculation of principal, interest, and costs, with dates.

Exhibits are key. Attach the proof the court needs to rely on. This often includes the court receipt showing the deposit, the judgment or decision, any settlement agreement, consents, correspondence showing no dispute, and an interest calculation. Each exhibit must have a label and a commissioner’s exhibit stamp or statement. Each page should be initialed by you and the commissioner.

You must sign the affidavit in the presence of the commissioner. You cannot sign and then seek a stamp later. The commissioner will complete the jurat, which states the place, date, and method of swearing or affirming. If you use exhibits, the jurat must note that you have sworn with exhibits attached.

If the payee is a minor or a person under a disability, extra protections apply. The affidavit should identify the person’s status and the guardian’s authority. You may need to propose how the funds will be held and used. The order may direct payment to a trustee or require the funds to remain in court until age 18. Explain the plan clearly.

If more than one person claims the funds, explain how the motion addresses all claims. If parties consent, attach signed consents. If some oppose, your affidavit should show service and set out why payment should still be ordered.

Include clear payment directions. The court needs a legal name for the payee and delivery instructions. If you request a cheque to a law firm trust account, state the exact name. If you request an electronic transfer, confirm whether the court can do that and provide required details. If the court issues a cheque only, provide a current mailing address.

Finally, ensure the names on the affidavit match the court file. Use the exact style of cause and file number. Use your legal name, not a nickname. If you act as an executor, trustee, or company officer, state your role.

How to Fill Out a Form 72B – Affidavit (Motion for Payment out of Court)

Follow these steps to prepare a clear, complete affidavit.

1) Collect your documents.

• Get the court file number and style of cause.
• Obtain the court receipt or confirmation of the funds on deposit.
• Gather the judgment, decision, or settlement that supports release.
• Collect consents, if any. Get proof of service if needed.
• Prepare an interest and amount calculation to the proposed payment date.
• If paying to a trust account, have the exact trust name and address.

2) Complete the court caption.

• At the top, set out the court name and division in Prince Edward Island.
• Insert the court file number exactly as on previous filings.
• Write the style of cause with the parties’ names in the same order.
• Title the document: “Affidavit (Motion for Payment out of Court).”

3) Identify the deponent.

• State your full legal name, municipality, and province.
• State your occupation. If none, write “self-employed” or “retired,” as applicable.
• State your role in the case (plaintiff, defendant, judgment creditor, guardian, trustee, or counsel).

4) State the purpose of the affidavit.

• In the first paragraph, say you make this affidavit to support a motion for payment out of court.
• Name the payee you seek to have paid.
• State the amount you seek, subject to final interest as of a date.

Example: “I make this affidavit in support of a motion for payment out of court to [Name], in the amount of $[amount], plus interest to [date].”

5) Describe the funds held by the court.

• State when and by whom the money was paid into court.
• State the amount paid and any interest known to date.
• Refer to the receipt or registry confirmation and attach it as Exhibit “A.”

Example: “On [date], the defendant paid $25,000 into court. A true copy of the receipt is attached as Exhibit ‘A’.”

6) Explain your entitlement.

• If you have a judgment, identify the judgment date and attach it as an exhibit.
• If you rely on a settlement, summarize the key terms and attach the agreement or relevant release.
• If the deposit was security, explain that the purpose is complete and attach proof.
• If the court decided competing claims, refer to that decision and attach it.

State it plainly: why the money should be paid to you or your client now.

7) Address all interested parties.

• List all parties or persons who may claim an interest in the funds.
• Confirm you served them with the motion materials. Attach an affidavit of service if available, or in this affidavit include the dates and methods of service.
• If you have written consents, attach them as exhibits.

If no one else has a claim, say so and explain why. If someone consents, say so and attach the consent. If someone opposes, explain the issue and why payment should still proceed.

8) Provide a clear calculation.

• Break down the amount requested: principal held, interest to a date, costs if any, and the total.
• Attach a schedule that shows the interest calculation and dates. Label it Schedule “A” and refer to it in the affidavit.

Example: “As shown in Schedule ‘A,’ interest at [rate] from [start date] to [end date] is $[amount]. The total requested is $[total].”

If you do not know the exact interest held by the court, ask for “the amount on deposit, including accrued interest, up to the date of payment.” Provide your best calculation and say you seek payment of the full balance on deposit.

9) State payment directions.

• Name the payee exactly as the cheque should read. Use full legal names.
• Provide the mailing address for delivery. If you request delivery to counsel, state the firm name and address.
• If multiple parties will share the funds, set out the split and exact payee names for each.

If funds are for a minor or held in trust, state the trustee and trust terms you seek. If you propose to keep funds in court until a set date, say so.

10) Deal with conditions or releases.

• If releases, dismissals, or discharges are required, explain they are completed or will be delivered on payment.
• If payment out will satisfy a judgment, say whether the file can be marked satisfied as to the paid amount.
• If any holdback applies, explain it and confirm who holds it.

11) Add any necessary background facts.

• Keep it relevant and factual. Do not argue.
• Use numbered paragraphs. Each paragraph should address one point.

12) Attach and mark exhibits.

• Label each exhibit with a letter in sequence: A, B, C, etc.
• On the first page of each exhibit, include an exhibit statement signed by the commissioner.
• Refer to each exhibit by letter in the affidavit text.

Typical exhibits include the deposit receipt, judgment or decision, settlement agreement, consents, correspondence, and your calculation schedule.

13) Complete the jurat.

• Sign the affidavit in front of a commissioner for oaths or notary.
• The commissioner must complete the jurat with the date, place, and method (sworn or affirmed).
• You and the commissioner must initial each exhibit.

Do not sign in advance. Bring government photo ID. The commissioner may ask how you know the facts in the affidavit.

14) Review for accuracy and clarity.

• Names must match the court file.
• Numbers must add up. Dates must be correct.
• The amount requested must be consistent across the affidavit, exhibits, and draft order.
• The payment instructions must be precise and complete.

15) Prepare a draft order that matches the affidavit.

• The order should name the payee and amount.
• It should direct the court to pay from the funds on deposit, including accrued interest.
• If there are splits or trusts, the order must reflect them.

Align the order with what you set out in your affidavit. The court relies on the affidavit to justify the order.

Checklist to avoid rejection:

• Use the correct file number and style of cause.
• State the deposit details and attach the receipt.
• Prove entitlement with a judgment, decision, or settlement.
• Serve all interested parties and attach proof or consents.
• Provide a clear calculation and a schedule.
• Give exact payee details and delivery instructions.
• Swear the affidavit properly with exhibits marked.
• Ensure the draft order matches your request.

Practical examples of content:

• Judgment case: “The court granted judgment for $20,000 on June 1, 2025. The defendant paid $20,000 into court on May 1, 2025. I seek payment out of the $20,000 on deposit, plus accrued interest, to the plaintiff, ABC Inc.”
• Settlement case: “We settled for $15,000 all inclusive. The defendant paid $15,000 into court on April 10, 2025. The settlement is attached as Exhibit ‘B’. All conditions are met. The defendant consents to payment out. I seek payment to my firm’s trust account for the plaintiff.”
• Minor’s settlement: “The court approved the settlement on March 5, 2025. The order directs that funds remain in court until the child turns 18, except $2,000 for immediate needs. I seek payment of $2,000 to the guardian, and confirmation that the balance remains in court.”
• Competing claims resolved: “By order dated July 15, 2025, the court declared the applicant entitled to the funds. The order is Exhibit ‘C’. I seek payment of the balance on deposit, including interest, to the applicant.”

A few drafting tips:

• Use plain, direct statements. Avoid argument and conclusions of law.
• Number each paragraph. Keep paragraphs short and focused.
• Use present tense for current facts and past tense for past events.
• If you rely on information from the court registry, say how you learned it.

If you are a lawyer swearing the affidavit, state how you know the facts. For example, from the court file, from your trust records, or from the settlement documentation under your control.

If you are a corporate officer, state your title and authority to swear. Attach a copy of any corporate resolution if needed. If you are a trustee or executor, state your appointment and attach proof.

If there are tax or interest issues, address them. For example, interest earned on funds held in court may be reported. If you know the court’s process for issuing interest slips, say you will provide any required information.

If names changed since the deposit, explain and attach proof, such as a marriage certificate or corporate name change. The payee name on the order must match the proof.

If there are liens or assignments of the funds, disclose them. Explain how the order addresses them, or attach the lienholder’s consent.

If you are unsure of the exact balance on deposit, ask for “the full amount of funds on deposit to the credit of this action, including accrued interest, as of the date of payment,” payable to the named payee. Your calculation schedule helps the court assess reasonableness, but the registry will pay the exact balance held.

By following these steps, you give the court what it needs to release the funds. Your affidavit becomes the clear, sworn roadmap for the order.

Legal Terms You Might Encounter (Form 72B – Affidavit, Motion for Payment out of Court)

• Affidavit: This is your sworn statement of facts. In Form 72B, you confirm who you are, why the court holds money, how much you seek, and why you are entitled to it. You swear or affirm the truth of every line.
• Deponent: That’s you, the person signing the affidavit. When the form asks for the “deponent’s” information, enter your full legal name, contact details, and role in the case.
• Commissioner of Oaths/Notary Public: This official administers your oath or affirmation. They complete and sign the jurat (the signature block at the end). Form 72B is not valid unless it’s sworn or affirmed before one of these officials.
• Motion: A motion is a request for a court decision. Your affidavit supports a motion for payment out of court. The judge or master reviews your affidavit and any other documents before deciding whether to release funds.
• Payment into Court: Money can be deposited with the court to hold funds safely until the court decides who should receive them. Your Form 72B explains the background of that deposit and why you should be paid from it.
• Payment out of Court: This is the release of those deposited funds to a specific person or entity. Your affidavit sets out the facts the court needs to make that order.
• Order: The court’s written decision. If your motion is granted, you receive an order authorizing payment out of court. The registry or Accountant of the Court will not release funds without a proper order.
• Style of Cause and Court File Number: The style of cause is the formal case name (for example, “Smith v. Jones”). The file number is the unique number assigned to the court case. Form 72B must match the existing file exactly, or the registry may reject it.
• Service: Service means delivering your motion materials to other people affected by the payment. If anyone else might claim the funds, you usually must serve them and prove you did so. Your affidavit may attach proof of service.
• Exhibit: An exhibit is a document attached to your affidavit. For this form, common exhibits include the receipt showing the court deposit, prior court orders, a calculation of the amount requested (including interest), consents from other parties, and proof of your identity or authority.
• Interest: Deposited funds may earn interest. Your affidavit should say whether you seek interest, identify the relevant dates, and explain how the amount is calculated or that you seek “principal and accrued interest.”
• Registrar/Court Registry: The court office that accepts filings and issues orders once signed. You file your Form 72B here, book your motion if needed, and, after you obtain the order, coordinate payment processing.

FAQs (Form 72B – Affidavit, Motion for Payment out of Court)

Do you need a lawyer to file Form 72B?

You don’t have to. Many people complete and swear the affidavit themselves. That said, payment out of court can affect other parties and funds can be subject to conditions. If the situation is complex, consider getting independent advice.

Do you have to notify other people before filing?

Usually, yes. If anyone else may claim the same money, or if an earlier order requires notice, you should serve them. Attach proof of service to your motion record. If you believe notice is unnecessary, explain why in your affidavit. The court decides whether notice was adequate.

Do you have to attend a hearing?

It depends. Some straightforward requests proceed “on the papers” if all parties consent and your materials are complete. Others require a short appearance. The registry will tell you when a hearing date is needed and how to schedule it.

Do you need to attach the court deposit receipt?

Yes. The court needs proof that the money exists and is tied to your file. Attach the official receipt or confirmation from the registry as an exhibit. If you don’t have it, ask the registry how to obtain a copy or acceptable alternative proof.

Do you request interest, and how do you handle tax?

If the funds earned interest, say so and include it in your amount. State the period for which interest accrued. If the court or government issues a tax slip for interest, you may need to provide your legal name and tax identifier to the paying office. Ask the registry what they require for processing.

Do you need the consent of other parties?

Consent can simplify and speed up the process. If all interested parties agree you should be paid, attach written consents. If you don’t have consent, set out clear facts showing your entitlement and include proof of any notice you gave. The court can still order payment if satisfied.

Do you need to file a draft order?

Often, yes. A draft order helps the court and registry understand exactly what payment you seek. Include the amount (principal and any interest), who gets paid, and how (cheque or electronic transfer if available). Use clear, plain wording so the registry can process it without questions.

Do you need original identification?

You should be prepared to prove your identity when the funds are released. If you are receiving money on behalf of someone else (such as an estate or a minor), bring proof of your authority. The paying office may also ask for banking details if electronic payment is available.

Checklist: Before, During, and After the Form 72B – Affidavit (Motion for Payment out of Court)

Before signing (gather these):

• Case details:
• Style of cause and exact court file number
• Name of the court location (registry)
• Deposit details:
• Court receipt or written confirmation of the deposit
• Amount deposited and deposit date
• Any earlier order or judgment explaining the deposit
• Entitlement proof:
• Settlement agreement, judgment, release, or correspondence that explains why you should be paid
• Written consents from other parties, if available
• Amount details:
• Principal amount you seek
• Interest period and calculation, if applicable
• Any deductions (fees, costs, tax) and how you calculated them
• Identity and authority:
• Government-issued ID
• If acting for someone else: proof of authority (e.g., power of attorney, estate appointment, corporate signing authority)
• Service materials:
• Names and addresses for anyone to be served
• Affidavits of service or delivery receipts (once completed)
• Draft documents:
• Draft order for payment out of court
• Proposed form of receipt or acknowledgment if the registry requests it
• Administrative items:
• Filing fee payment method
• Your mailing address, email, and phone number
• Banking details if the registry offers electronic payment

During signing (verify these on Form 72B):

• Names and numbers:
• Your full legal name and contact information
• Exact style of cause and court file number
• Accuracy of facts:
• Clear, short paragraphs that tell the story: why the money is held and why you should be paid
• Amount requested (principal and interest) is stated in numbers and words if the form provides space
• Dates, amounts, and references match your exhibits
• Exhibits:
• Each exhibit is labeled (e.g., “Exhibit A”) and referred to in the affidavit text
• Each exhibit is initialed by you and the commissioner on every page, if required
• Jurat (the commissioning block):
• The date and location of swearing/affirming are filled in
• The commissioner’s name, title, and signature are present and legible
• Your signature matches the name on the first page and your ID
• Consistency:
• The draft order mirrors the exact amounts and parties named in the affidavit
• Any consents or notices referenced in the affidavit are attached
• Completeness:
• No blank mandatory fields
• No corrections using white-out; if you must correct, reprint a clean page

After signing (file, notify, and store):

• Filing:
• File Form 72B with the registry, along with your motion materials and draft order
• Pay any filing fees and keep the receipt
• Service:
• Serve all required parties with the filed materials
• File affidavits of service proving delivery
• Scheduling:
• Book a hearing date if required, or confirm if the motion will be decided in writing
• Calendar any response deadlines for other parties
• After the decision:
• If granted, submit the signed order to the registry for issuance
• Provide the issued order to the paying office to release funds
• Supply any additional information required for payment (ID, banking details, tax information)
• Records:
• Keep stamped copies of everything you filed and served
• Keep proof of payment received and any tax slips
• Update your records if any address or banking details change

Common Mistakes to Avoid (Form 72B – Affidavit, Motion for Payment out of Court)

• Leaving out the court deposit proof. Don’t forget to attach the receipt or confirmation showing the money is with the court. Without it, the registry may refuse to process your motion.
• Using the wrong file number or style of cause. If these don’t match the court’s records, your documents can be returned. Double-check the exact spelling and file number on every page and exhibit.
• Skipping notice to affected parties. If you don’t serve people who may be entitled to the funds, the court can adjourn or deny your request. Identify all possible claimants and serve them, or explain clearly why notice isn’t needed.
• Vague or mismatched amounts. If your affidavit, exhibits, and draft order don’t line up, your motion can stall. State the principal and interest clearly, show your calculations, and ensure every number matches across documents.
• Missing or defective commissioning. If the jurat is incomplete, or the affidavit isn’t properly sworn or affirmed, the registry can reject it. Always sign in front of the commissioner and ensure their name, title, date, and location are complete.

What to Do After Filling Out the Form (Form 72B – Affidavit, Motion for Payment out of Court)

1. File your materials with the registry. Include Form 72B, your exhibits, your draft order, and any supporting documents such as prior orders, consents, and affidavits of service. Pay the fee and get a stamped copy or filing confirmation.
2. Serve anyone who needs notice. Deliver the filed materials to all parties who may be affected by the payment out. Use a reliable method that produces proof of delivery. Keep track of deadlines for responses or objections.
3. Confirm the process for decision. Ask the registry whether your motion will proceed in writing or if a hearing is required. If a hearing is needed, book a date, prepare brief speaking notes, and bring extra copies of your documents.
4. Address any issues raised. If another party requests clarification or objects, you can file a short supplementary affidavit to address it. Keep your response factual and attach any missing documents as exhibits.
5. Obtain the order. After the court decides, the order will be prepared and issued. Review it carefully for accuracy. Ensure it states who gets paid, the exact amount, and any interest or deductions.
6. Arrange payment. Deliver the issued order to the paying office. Provide any identity, banking, or tax details they require. Confirm the payment method and timeline. If a cheque is issued, confirm the payee name and mailing address.
7. Handle amendments if needed. If the order contains an error (for example, the wrong amount or spelling), contact the registry to correct it. You may need a brief appearance or consent from other parties, depending on the change.
8. Recordkeeping. Store stamped copies of your filed documents, the issued order, proof of service, and payment confirmation. Keep any tax slips related to interest. These records protect you if questions arise later.
9. Follow up and close the loop. If you are receiving funds for others (such as clients or beneficiaries), provide a written accounting and obtain acknowledgments as required. If conditions in the order require further steps, diarize and complete them on time.
10. If your motion is not granted. Review the reason. It might be missing documents, inadequate notice, or unclear entitlement. Fix the issue, gather the missing material, and refile or seek directions from the registry on next steps.