Estate of Frances Elaine Freedman, Deceased, Robin Elaine Carnette, Personal Representative - Page 19

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                    The final Code contains no provision dealing with                 
               division of the account when the parties fail to prove                 
               net contributions.  The omission is deliberate.                        
               Undoubtedly a court would divide the account equally                   
               among the parties to the extent that net contributions                 
               cannot be proven; but a statutory section explicitly                   
               embodying the rule might undesirably narrow the                        
               possibility of proof of partial contributions and might                
               suggest that gift tax consequences applicable to                       
               creation of a joint tenancy should attach to a joint                   
               account.  The theory of these sections is that the                     
               basic relationship of the parties is that of individual                
               ownership of values attributable to their respective                   
               deposits and withdrawals; * * *                                        
               The just-quoted comment elucidates that the “different                 
          intent” contemplated by the exception contained in TPC 438(a) is            
          an intent to make a gift.  Stated otherwise then, the necessary             
          showing required to override the rule of ownership in proportion            
          to contributions is clear and convincing proof that a gift was              
          intended.  Moreover, the comment drives home that since the                 
          opening of a joint account and the depositing of assets therein             
          are inherent in any scenario covered by the statute, these facts            
          play no role in establishing the requisite intent to meet the               
          exception.                                                                  
               Under Texas law, clear and convincing evidence demands                 
          “‘that measure or degree of proof which will produce in the mind            
          of the trier of fact a firm belief or conviction as to the truth            
          of the allegations sought to be established.’”  In re G.M., 596             
          S.W.2d 846, 847 (Tex. 1980) (quoting State v. Addington, 588                
          S.W.2d 569, 570 (Tex. 1979)); see also Oadra v. Stegall, 871                
          S.W.2d 882, 891 (Tex. App. 1994).  This burden falls on the party           





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