Estate of Frances Elaine Freedman, Deceased, Robin Elaine Carnette, Personal Representative - Page 18

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          case can be narrowed particularly to application of the                     
          “different intent” exception.                                               
               In construing provisions of the Texas Probate Code derived             
          from the Uniform Probate Code, Texas courts have looked to                  
          corresponding provisions in the uniform act, considering the                
          degree of textual similarity and taking guidance from the                   
          comments accompanying the uniform laws.  See, e.g., Stegall v.              
          Oadra, 868 S.W.2d 290, 293 (Tex. 1993); Stauffer v. Henderson,              
          supra at 863; Dickerson v. Brooks, 727 S.W.2d 652, 654 (Tex. App.           
          1987).  The language of TPC 438(a) is identical to that of Unif.            
          Probate Code sec. 6-103(a) (1969 Act), 8 U.L.A. (Part II) 464               
          (1998), the attendant comment of which reads in relevant part:              
                    This section reflects the assumption that a person                
               who deposits funds in a multiple-party account normally                
               does not intend to make an irrevocable gift of all or                  
               any part of the funds represented by the deposit.                      
               Rather, he usually intends no present change of                        
               beneficial ownership.  The assumption may be disproved                 
               by proof that a gift was intended. * * * It is                         
               important to note that the section is limited to                       
               describe ownership of an account while original parties                
               are alive.  Section 6-104 prescribes what happens to                   
               beneficial ownership on the death of a party.  The                     
               section does not undertake to describe the situation                   
               between parties if one withdraws more than he is then                  
               entitled to as against the other party.  Sections 6-108                
               and 6-112 protect a financial institution in such                      
               circumstances without reference to whether a                           
               withdrawing party may be entitled to less than he                      
               withdraws as against another party.  Presumably,                       
               overwithdrawal leaves the party making the excessive                   
               withdrawal liable to the beneficial owner as a debtor                  
               or trustee.  Of course, evidence of intention by one to                
               make a gift to the other of any sums withdrawn by the                  
               other in excess of his ownership should be effective.                  






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