IN RE THE ESTATE OF ISAIAH H. GRANT, ETC. JANET GRANT WILLIAMS, APPELLANT,
v.
JEHU A. IRICK, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ISAIAH H. GRANT, DECEASED, APPELLEE
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COWART, Judge.
Appellant filed a 1977 will of a decedent and petitioned for revocation of probate of a 1975 will. Appellee, personal representative, served an affirmative defense alleging the decedent lacked testamentary capacity to execute the 1977 will. Upon motion the probate court dismissed the petition for revocation of probate on the ground that since appellant filed no reply denying the allegations in the affirmative defense those allegations were admitted under Florida Rule of Civil Procedure 1.110(e). We reverse.
A reply to an affirmative defense is unnecessary to merely deny the allegations of the affirmative defense because such allegations are taken as denied. Such a reply is necessary and permitted only in order to allege new facts that may be legally sufficient to avoid the legal effect of the facts contained in the affirmative defense. See Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981); Hertz Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981). See also Florida Rule of Civil Procedure 1.100(a) and H. Trawick, Florida Practice and Procedure § 11-6 (1982).
REVERSED AND REMANDED.
ORFINGER, C.J., and COBB, J., concur.
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Abston v. Floyd T. Bryan, M.D., 519 So. 2d 1125 (Fla. 5th DCA 1988)…to which a responsive pleading was permitted. A reply to an affirmative defense is permitted only in order to allege new facts that may be sufficient to avoid the legal effect of the facts contained in the affirmative defense. In Re Estate of Grant, 433 So. 2d 681 (Fla. 5th DCA 1983). A reply is activated only by an affirmative defense that can be avoided; it is never used to deny an affirmative defense, since the affirmative defense is deemed denied. Moore Meats, Inc. v. Strawn, In and For Seminole County, 3…
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Robert Reno, M.D. v. Adventist Health Systems/Sunbelt, Inc., 516 So. 2d 63 (Fla. 2d DCA 1987)…ordingly.” 313 So. 2d at 661. That is, as plaintiff argues, a reply to an affirmative defense is necessary only in order to entitle the plaintiff to, in effect, prove an affirmative defense to [*65] an affirmative defense. See also Williams v. Inch, 433 So. 2d 681 (Fla. 5th DCA 1983); Trawick, “To Reply Or Not to Reply?,” 47 Fla.B.J. 703 (1973).1 Accordingly, plaintiffs failure to file a reply to the affirmative defense had the effect of denying the allegations of the defense. By having failed to reply to th…
Authorities Cited
- Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975)
- Eskell H. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)
- HERTZ Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981)