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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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