September 12, 1989
Digest: A judge whose spouse proposes to contest the probate of the will of the spouse’s deceased parent may testify as a witness in a Surrogate’s Court proceeding as to the judge’s conversations with the decedent and the judge’s observations of the decedent’s demeanor.
Rules: 22 NYCRR 100.2(c), Canon 2(B) Code of Judicial Conduct
A judge inquires whether it is permissible to testify in an anticipated Surrogate’s Court proceeding in which the judge’s spouse intends to contest the probate of a will of the spouse’s deceased parent. The judge expects to be called upon to testify as to the judge’s conversations with the decedent and the judge’s observations of the decedent’s demeanor.
A judge is not permitted to testify voluntarily as a character witness, and may do so only pursuant to a subpoena. However, in this instance the judge would be testifying as a witness to facts, as would any other witness who has knowledge of relevant facts. The Committee believes that the judge is not prohibited from so testifying, even without a subpoena, although the Committee feels that the judge’s testimony pursuant to a duly issued subpoena would be preferable. See also Ops. Adv. Comm. on Jud. Ethics 87-05; 88-63-88-155.