IN RE ESTATE OF LYDIA M. SNYDER, DECEASED

GARRETT, Judge.

Appellant seeks review of the trial court's order dismissing his petition to set aside a will.

Lydia M. Snyder, appellant’s mother, died May 16, 1988, and in her will, admitted to probate on June 13, 1988, she named appellant and Ted Armstrong (Armstrong) as beneficiaries. On August 30, 1988, appellant wrote the probate division asking that the will be set aside. On September 13, 1988, appellant’s attorney filed a petition to set aside the will. Both Armstrong and the decedent’s personal representative moved to dismiss the petition. Just before the scheduled motions hearing, the parties agreed to a dismissal after Armstrong’s attorney saw appellant’s proposed amended petition. On November 11, 1988, the trial court entered the agreed order of dismissal which gave appellant ten days to file an amended petition. On December 8, 1988, Armstrong and the personal representative each filed a motion for entry of final judgment because the amended petition had not been filed and the statutory time to contest the will had expired. Also on December 8, 1988, appellant’s attorney filed the amended petition, but he had designated the wrong probate division in the caption. At the motion hearing on December 19, 1988, Armstrong’s attorney knew of appellant’s amended petition filing, but stated that his client had not been served until December 12, 1988. The trial judge entered final judgment and later denied appellant’s motion for rehearing.

We find that the trial judge abused his discretion in dismissing the amended petition. If a defendant files an untimely answer before a default is entered, the entry of the default is avoided. Haitian Community Flamingo Auto Parts Corp. v. Landmark First Nat’l Bank of Fort Lauderdale, 501 So. 2d 170 (Fla. 4th DCA 1987). We hold that the same should apply to this case scenario. Appellant filed his untimely amended petition before the hearing on appellee’s motion for entry of final judgment. The filed amended petition should have avoided the entry of the final judgment. Once filed, the amended petition related back to the date of the original pro se petition and came within the statutory time to contest a will. See Laux v. Laux, 543 So. 2d 462 (Fla. 2d DCA 1989).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUNTHER, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially.

Appellant had the burden of presenting evidence under oath or by stipulated fact to establish excusable neglect but failed to do so. Hence, there was nothing upon which the court could conclude excusable neglect. See Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982).

Nevertheless, as Judge Garrett has wisely suggested at conference, there should be a distinction between punishing the client for his omission and punishing the client for his lawyer’s omission. In the absence of prejudice to the other party by that omission, the lawyer’s omission should result in sanctions' to him or her, not the client. Sanctioning the lawyer here, not dismissing the amended complaint — given the absence of any showing of prejudice to the estate — would have been appropriate; and I would reverse and remand for an evidentiary hearing to determine the sanction against the lawyer and with direction to allow the amended pleading to be filed. Appellant’s claim should be heard on the merits.

I realize there is a tension between our rules and orders and lawyers who do not comply with them. Sanctions are a healthy remedy in the absence of negligence or active participation by the client and the absence of proof of prejudice to the other party. Were prejudice shown to the other party here, I would have opted to affirm.