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have very different views as to the result that should obtain
from applying TPC 438(a) here.
It is respondent’s position that the record in this case
establishes both that decedent contributed all the property
placed in the Valdes & Moreno account and that she did not intend
at the time she opened and funded the account to make a gift of
eConnect stock to Mr. Greene. The estate, in contrast, while not
disputing the applicability of TPC 438(a),3 argues that decedent
clearly intended to effect a gift of one-half of the eConnect
stock to Mr. Greene by placing it in the joint account. The
estate also points to a presumption in Texas common law that a
parent intends to make a gift to a child upon delivering
possession, conveying title, or purchasing property in the name
of the child.
As previously quoted, TPC 438(a) legislates ownership of
joint accounts during life in proportion to respective
contributions, absent clear and convincing proof of a contrary
intent. The evidence here is unequivocal in showing that all of
the eConnect stock funding the Valdes & Moreno account was
contributed by decedent and that Mr. Greene at no time placed any
of his personal assets in the account. Hence, the focus of this
3 Although the estate failed to cite or mention TPC 438(a)
on opening brief, the estate’s reply brief and subsequent motion
to reopen the record quote and discuss the statute in a manner
presumptive of its applicability and never so much as allege that
TPC 438(a) is not operative here.
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