Given the complexity of our practice, we find a corresponding reliance upon experts to testify to contested matters in the Surrogate’s Courts. Expert testimony has been offered where the issue concerned the effects of medication upon a testator’s capacity to execute a will,1 the valuation of property,2 the genuineness of handwriting,3 or the prudence of a trustee’s investment decisions.4 This article will explore the use of expert testimony and the scope of permitted disclosure of experts in Surrogate’s Court proceedings.
Witnesses: Lay vs. Expert
As a general rule, a lay witness may only testify to facts and is prohibited from offering an opinion as to the effect or meaning of such facts. It is up to the judge or jury to draw conclusions based upon testimonial or documentary evidence as to what occurred. Unlike a lay witness,5 an expert is called upon to render an opinion (provided it can be said with a reasonable degree of certainty) based upon his or her particular expertise as it relates to the established facts. It is within the court’s discretion whether to permit expert testimony and up to the trier of fact whether to accept or reject such opinion.
