In Donnelly v. Donnelly, a widow sued her deceased husband’s son for failing to vary the beneficiary designation on the husband’s IRA to call her. No. 14-21-00592-CV, 2022 Tex. App. LEXIS 7615 (Tex. App.—Houston October 13, 2022, no pet. historical past). The IRA account had the husband’s three sons listed as beneficiaries. The widow alleged that the husband instructed his son, who was his monetary advisor, to vary the beneficiary designation, and the son stated that he had carried out so. After the husband died, the widow found that the beneficiary designation had not been modified and sued for breach of fiduciary responsibility. The trial courtroom granted the son a abstract judgment, and the widow appealed.
The courtroom of appeals first held that the beneficiary designation was not ambiguous and her testimony about what the husband meant after its execution was not related to its validity. Additional, the courtroom of appeals affirmed the trial courtroom’s placing of the widow’s affidavit discussing her husband’s statements because of the useless man’s rule. The courtroom acknowledged:
The Useless Man’s Rule gives that: “In civil actions by or in opposition to executors, directors, or guardians, wherein judgment could also be rendered for or in opposition to them as such, neither occasion shall be allowed to testify in opposition to the others as to any oral assertion by the testator, intestate, or ward, until that testimony to the oral assertion is corroborated or until the witness known as on the trial to testify thereto by the alternative occasion; and, the provisions of this text shall prolong to and embrace all actions by or in opposition to the heirs or authorized representatives of a decedent based mostly in entire or partially on such oral assertion.” Tex. R. Evid. 601. The aim of the Useless Man’s Rule is threefold: (1) to place the events on an equal footing at trial, (2) to stop one, to the detriment of the opposite, from making the most of the truth that the lips of the deceased have been sealed, and (3) to render incompetent testimony as to conversations and transactions with a deceased in a go well with wherein the deceased would possibly deny the conversations and transactions if he had been alive. Lewis v. Foster, 621 S.W.second 400, 402 (Tex. 1981). The take a look at has been acknowledged as: If the witness supplied ought to testify falsely, might the deceased, if residing, controvert it by his personal private information? Id.
Texas courts construe the Useless Man’s Rule narrowly. Quitta v. Fossati, 808 S.W.second 636, 641 (Tex. App.—Corpus Christi 1991, writ denied) (citing Lewis, 621 S.W.second at 404)). The rule doesn’t prohibit testimony regarding statements by the deceased which might be correctly corroborated. See id. Corroborating proof should are inclined to help among the materials allegations or points which might be raised by the pleadings and testified to by the witness whose proof is sought to be corroborated. Id. It might come from another competent witness or different authorized supply, together with documentary proof. Id. Corroborating proof needn’t be adequate standing alone, however should have a tendency to substantiate and strengthen the testimony of the witness and present the likelihood of its fact. Id. For instance, it’s adequate if the corroborating proof exhibits conduct by the deceased that’s typically according to the testimony in regards to the deceased’s statements. Fraga v. Drake, 276 S.W.3d 55, 61 (Tex. App.—El Paso 2008, no pet.). Corroboration might come from another competent witness or different authorized supply, together with documentary proof. Powers v. McDaniel, 785 S.W.second 915, 920 (Tex. App.—San Antonio 1990, writ denied) (holding that checks reflecting property buy had been adequate to corroborate oral settlement regarding sale of property).
Id. The courtroom then discovered that the widow’s proof was not adequate to corroborate the statements:
Maria asserts that she introduced proof that:
• John was a member of the Briar Membership;
• John testified that he had no cause to dispute that he met Maria and George for dinner on the Briar Membership in June of 2017;
• George gave John a duplicate of his will throughout this assembly;
• George modified the beneficiary of his life insurance coverage coverage to Maria; and
• John, based on Maria, repeated George’s instruction to vary the beneficiary of the IRA.
The alleged corroboration asserted by Maria doesn’t have a tendency to substantiate and strengthen her testimony that George meant to vary the IRA beneficiary, nor does it have a tendency to indicate the likelihood of its fact. The truth that George modified the beneficiary of his life insurance coverage to Maria and altered his will to bequeath his complete property to Maria just isn’t corroborative of his alleged intent to vary his IRA beneficiary.
Maria’s allegation that John repeated George’s testimony just isn’t corroboration as it’s nonetheless Maria’s testimony. Corroboration of an occasion’s testimony might not emanate from her or rely upon her credibility. Garcia v. Garcia-Giesick, No. 04-00-00360-CV, 2001 Tex. App. LEXIS 7768, 2001 WL 1479244, at *2 (Tex. App.—San Antonio Nov. 21, 2001, no pet.) (mem. op.) (citing Tramel v. Property of Billings, 699 S.W.second 259, 262 (Tex. App.—San Antonio 1985, no writ)). Maria is an occasion. Accordingly, we can’t look to Maria’s personal affidavit to corroborate her affidavit. See id. Not one of the statements in Maria’s affidavit that purport to disclose George’s intent had been corroborated by adequate proof reflecting conduct by George that’s typically according to Maria’s testimony regarding George’s statements. We subsequently conclude the trial courtroom didn’t abuse its discretion in excluding Maria’s affidavit beneath the Texas Guidelines of Proof.
Id.
The courtroom then affirmed the no-evidence abstract judgment on the breach of fiduciary responsibility declare as a result of the widow didn’t have any proof to help her claims (together with her affidavit struck). The courtroom acknowledged: “The one proof Maria introduced to help her tort claims was her affidavit reporting the alleged instruction from George to John about altering the IRA beneficiary. The trial courtroom excluded Maria’s affidavit and we’ve concluded the trial courtroom didn’t err in excluding the affidavit. Due to this fact, Maria introduced no proof of a breach of any fiduciary responsibility or of a incontrovertible fact that was not disclosed.” Id.
Lastly, the widow complained that the trial courtroom positioned the burden of proof on her as there was a presumption of unfairness that shifted the burden to the defendant. The courtroom held, nevertheless, that there was no proof of a self-interested transaction within the first place that will then shift the burden to the defendant:
The particular person difficult the validity of an instrument typically bears the burden of proving the weather of undue affect by a preponderance of the proof. Quiroga v. Mannelli, No. 01-09-00315-CV, 2011 Tex. App. LEXIS 1959, 2011 WL 944399, at *5 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.). In some circumstances involving confidential or fiduciary relationships, nevertheless, the burden shifts to the particular person receiving the profit to show the equity of the transaction. Property of Danford, 550 S.W.3d 275, 281-82 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (fiduciary relationship created by energy of legal professional shifted burden of proof to fiduciary to indicate equity of transaction). In different phrases, when a fiduciary transacts with the principal or accepts a present or bequest from the principal, a burden is positioned on the fiduciary to show the equity of the transaction. Property of Grogan, 595 S.W.3d 807, 818 (Tex. App.—Texarkana 2020, no pet.). The gravamen of Maria’s criticism on this subject is that George instructed John to vary the beneficiary of the IRA and John refused to take action and failed to inform George that he had not carried out so. Maria’s solely proof of an alleged transaction was her personal self-serving affidavit, which the trial courtroom correctly excluded. Maria, subsequently, supplied no proof of a transaction on which John could possibly be required to supply proof of equity. As a result of there was no proof of a transaction, the presumption of unfairness was by no means triggered. We overrule Maria’s second subject difficult the abstract judgment on this floor.
Id. The courtroom affirmed the judgment for the defendant aside from an award of legal professional’s charges.
