- 19 - 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 partyPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011