An Intersection of Litigation and Probate… Do Not Crash!

A recent case indicates how litigation and probate often intersect. If you or your attorney do not understand litigation procedural rules, then you could lose valuable rights. In Sudman v. O’Brien, Theresa Z. Sudman (“Theresa”) lost her right to object to a court order regarding her elective share rights.

Theresa was married to the decedent, Michael Sudman, at the time of his death. Prior to her marriage, she allegedly signed a prenuptial agreement waiving her rights to the elective share. Generally, a surviving spouse is entitled to 30% of the  assets in a decedent’s elective estate if the surviving spouse does not otherwise receive such 30% of the assets. The elective estate generally includes the assets in a revocable trust.

Mr. Sudman had created a revocable trust, which, at his death, became irrevocable. His son, Michael O’ Brien, was named successor trustee. Theresa filed a petition for administration for her husband’s estate and was appointed personal representative. She then filed for her elective share.

Michael, as trustee, filed an objection stating that Theresa had waived her right to elective share under the prenuptial agreement. Michael then served 2 requests for admissions stating that she had previously signed the prenuptial agreement. Theresa NEVER responded to the requests and the trial court stated the requests were DEEMED admitted. Thus, Theresa was deemed to admit she signed the prenuptial agreement.

The appellate court determined that under the rule of civil procedure a “matter is admitted unless the party answers or objects within thirty days after service of the request” and the admission is “conclusively established unless the court on motion permits withdrawal or amendment of the admission”.

Apparently, Theresa never sought to be relieved from her admissions until the appellate court hearing. Theresa, however, stated at the appellate hearing that she attempted to ask for relief at the lower court hearing on the trustee’s objections. She stated that the trial court refused to hear her oral motion. Unfortunately, Theresa did not have a transcript of the hearing or a statement of the evidence as provided in the Florida Rules of Appellate Procedure.

Further, Theresa filed an affidavit in which she stated that she never entered into or signed a prenuptial agreement only AFTER the trial court entered the order granting the trustee’s objections. As this affidavit was not submitted to the trial court, the appellate court did not consider it.

ADVICE:  If you receive ANY kind of documentation from an attorney or the court, be sure that you clearly read the documentation. If the document indicates a time frame to respond, then DO NOT IGNORE IT. You may forfeit critical rights.

As an attorney, ANYTIME a probate or trust administration looks like litigation could ensue, then be sure you consult an appropriate attorney. Probate and trust litigation is a specialty. Do not trek in territory that is not comfortable without assistance from a qualified attorney.

WORD OF THE WEEK:  Admissions- When a complaint is filed in a lawsuit, a party can obtain certain facts from the opposing party through discovery. One method of discovery is a request for admission, a written statement submitted to an opposing party asking for the truth of certain facts. When such facts are admitted as being true, the court will accept them so such fact does not need to be proven at trial. If they are denied, the statements or documents become an issue to be argued during the trial.


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