Gifts of CD's
In a contested probate case, the mother bought several CD's. She had the bank list them under her name and her son's name: "Mother or Son." There was no question that all of the money in the CD's came from mother.
Eight days before mother died, son cashed out the CD's. When they were not listed in probate, the daughter filed suit against son to have the CD's put back in mother's estate. Son said that mother made a gift of the CD's to him.
When Is A Gift A Gift
In discussing gifts, the court said that the intention of the donor to make a gift must be proved by clear and convincing evidence. The proof must show the intention of the donor to absolutely and irrevocably divest himself of the title, dominion, and control of the subject of the gift in praesenti at the very time he undertakes to make the gift; . . . the irrevocable transfer of the present title, dominion, and control of the thing given to the donee, so that the donor can exercise no further act of dominion or control over it. Since it was undisputed that the mother retained the right to make withdrawals of the CD after the alleged gift, the court ruled that there was **no **gift.
The son then claimed that the CD's were joint accounts with right of survivorship. He called a bank officer who testified that the CD's were joint accounts with right of suvivorship. The court ruled that they were not joint accounts with the right of survivorship. The court said the record contains no **written **agreement between mother and the bank evidencing that the CD's were accounts with rights of survivorhip. A **written **agreement is required by §113.151 of the Tex. Est. Code (formerly §439(a) of the Probate Code,) and parol evidence (given or expressed orally) is not admissible to prove a right of survivorship in an account governed by this statute. §113.151 of the Tex. Est. Code. 285 S.W.3d 552.
Joint Accounts
The issue of joint accounts has been the subject of many court cases lately. It is a difficult and evolving area of law because community property joint accounts are apparently treated differently from accounts that do no involve spouses. If you have an issue with joint accounts, you should take action as soon as you can. If the daughter had not filed suit in this case, the brother would have taken her half of the CD's. 285 S.W.3d 552, 10-08-00145-CV.
Copyright by Robert Ray a Texas inheritance attorney.
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