Estate of Frances Elaine Freedman, Deceased, Robin Elaine Carnette, Personal Representative - Page 20

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          claiming that a gift has been made.4  Oadra v. Stegall, supra at            
          891.  Extrinsic or parol evidence is typically inadmissable to              
          prove the nature of an account for purposes of the Texas Probate            
          Code but is not proscribed on questions of the ownership and                
          capacities of parties to such an account.  Stegall v. Oadra,                
          supra at 294; Oadra v. Stegall, supra at 894.                               
               Texas courts adhere to a requirement of three elements as              
          necessary to establish the existence of a gift:  (1) Intent to              
          make a gift; (2) delivery of the property; and (3) acceptance of            
          the property.  Dorman v. Arnold, 932 S.W.2d 225, 227 (Tex. App.             
          1996); Grimsley v. Grimsley, 632 S.W.2d 174, 177 (Tex. App.                 
          1982).  Given that these requirements are stated in the                     
          conjunctive and that the emphasis of TPC 438(a) is on the issue             
          of intent, focus at the outset on the first-listed element is               
          appropriate here.                                                           
               The estate cites a litany of circumstances in an effort to             
          show that decedent intended by placing her eConnect stock in the            
          joint account to make a gift to Mr. Greene.5  This alleged                  

               4 The State law rules on placement of burden relevant in               
          this case dovetail with the typical rule in tax litigation that             
          the burden of proof rests on the taxpayer generally and on the              
          party raising any new matter particularly.  See Rule 142(a).                
          Although sec. 7491(a) can effect a shift of burden in specified             
          circumstances, the estate makes no argument that the statute has            
          any application here and has not addressed the preconditions for            
          its use.                                                                    
               5 The estate also directs the Court’s attention to a number            
                                                             (continued...)           





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