July 7, 2021
This responds to your inquiry (21-96) asking if you, a full-time judge, may provide, at the request of a lawyer representing the estate of an individual you knew professionally for many years, a “family tree affidavit” to be submitted in Surrogate’s Court. The lawyer apparently requires an affidavit from a non-family member possessing personal knowledge of the deceased individual’s “marital status, heirs and family tree.” We understand that you acquired such knowledge in the course of providing legal representation to this individual.
Although you may not testify voluntarily as a character witness (22 NYCRR 100.2[C]), you may testify voluntarily as a fact witness, and accordingly, you may provide an affidavit concerning factual circumstances of which you have personal knowledge.
We enclose Opinions 18-138; 18-128; 12-10; 10-118; and 98-118 for your convenience.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Acting Supreme Court Justice