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Land v. Burkhalter
Citations: 283 Ga. 54; 656 S.E.2d 834; 2008 Fulton County D. Rep. 220; 2008 Ga. LEXIS 34Docket: S07A1878
Court: Supreme Court of Georgia; January 28, 2008; Georgia; State Supreme Court
Hazel Demonia's will was offered for probate by Evelyn Land, but Michael Burkhalter filed a caveat against it, claiming procedural deficiencies. The probate court upheld the caveat, noting the will lacked the required two witnesses who signed in the presence of the Testatrix, as mandated by OCGA 53-4-20 (b). Land appealed to the superior court, where Burkhalter sought summary judgment. The superior court granted this motion, prompting Land's appeal. The probate court hearing was not officially reported but was recorded, and an uncertified transcript was used in the superior court proceedings. Land contended the superior court erred by relying on this uncertified transcript, but since no objection was raised at the trial regarding the certification or the transcript's accuracy, any error was waived. Additionally, an argument concerning the foundational support for the tape was also waived due to a lack of objection during the trial. The will was purportedly witnessed by Patricia Couey, Randolph Land, and Stella Hopkins. While Hopkins signed as both a witness and notary and confirmed she was present during the Testatrix's signing, she stated that Couey and Land signed outside the Testatrix's line of sight. Couey, however, asserted that she and Hopkins were present in the bedroom when the Testatrix signed. The superior court was obliged to interpret the evidence in favor of Land, who argued that genuine issues of material fact remained regarding compliance with the witnessing requirements. Despite Hopkins's claim of not intending to witness, her presence during the signing and her subsequent signature as a witness fulfilled the statutory requirements. If Ms. Hopkins and Ms. Couey signed the will in the presence of the Testatrix, the location where Mr. Land signed is irrelevant. According to OCGA 53-4-20 (b), only two competent witnesses are needed. Although Ms. Hopkins is disqualified from being both a notary and a witness under OCGA 45-17-8 (c)(1), this disqualification does not affect her ability to act as a witness since a notary was not required for this non-self-proving will. There is conflicting evidence regarding the will's proper execution as per OCGA 53-4-20 (b). Ms. Hopkins claims she signed in the Testatrix's presence, while Ms. Couey asserts that both signed in her presence. The evidence must be interpreted favorably for the Propounder, indicating that the superior court wrongly granted summary judgment to the Caveator. The judgment is reversed, with all Justices in agreement.