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Land v. Burkhalter

Some evidence showed that at least two witnesses signed the decedent's will in her direct presence

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When Hazel Demonia Testatrix died, Evelyn Land Propounder offered her will for probate. Michael Burkhalter Caveator filed a caveat. After conducting a hearing, the probate court sustained the caveat, on the ground that, contrary to the mandate of OCGA § 53-4-20 b, the requisite two witnesses had not signed in the presence of the Testatrix. Propounder appealed to the superior court, where Caveator moved for summary judgment. The superior court granted the motion, from which order Propounder brings this appeal. 1. The hearing in probate court was not officially reported, but it was taped and an uncertified transcript was prepared by an official court reporter. That transcript was submitted to and considered by the superior court in ruling on the motion for summary judgment. Citing Achor Center v. Holmes , 219 Ga. App. 399, 401 1 465 SE2d 451 1995, Propounder urges that the superior court erred in relying on that uncertified transcript.

An objection to the lack of certification was not raised below and Propounder does not contend that the transcript contains any mistakes. Had there been a timely objection, an official transcript as authorized by OCGA § 5-6-41 g could have been prepared. Under these circumstances, any error in the superior court’s consideration of the uncertified transcript of the tape was waived. See Burnett v. State , 182 Ga. App. 539, 544 356 SE2d 231 1987 On Motion For Rehearing. Likewise, the additional contention that the superior court erred because a proper foundation was not laid for the tape from which the transcript was prepared was waived by Propounder’s failure to raise that objection below. See Harris v. State , 237 Ga. 718, 724 5 230 SE2d 1 1976 “appellant made no objection at the trial to the alleged absence of a proper foundation for the introduction of the tape recordings”.

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