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Click here for the full text of this decision FACTS:Joseph Dellinger and Michael John Dellinger are brothers. Their father was Chester Sam Dellinger, the decedent. On July 7, 2003, Chester and Michael opened a joint bank account with Advancial Federal Credit Union. When Chester died, the record reflects that the Advancial account retained approximately $234,000 in value. The Advancial Federal Credit Union membership and account application, signed by both Chester and Michael, contained nine individual information boxes. Information boxes one, two and five of the application designated the account as a savings account, listing Chester as a “member” and Michael as a “joint owner.” Box seven, labeled Payable on Death Designation, was left blank. Box eight, titled Signatures, contained the following language above the signature clause: “By signing, I/We agree to the terms and conditions of the Membership and Account Agreement, Truth-In-Savings Fee Schedule, Funds Availability Policy Disclosure, Electronic Funds Transfer Agreement, and to any amendment the Credit Union makes from time to time which are incorporated herein. I/We acknowledge receipt of a copy of the Account Agreement and Disclosures applicable to the account(s).” Both Chester and Michael signed the application on the lines provided in box eight. In addition to the application, Chester and Michael both received a copy of the document titled Account Agreement, Disclosures and Privacy Policy, which defined multiple party accounts as an account owned by two or more persons. Such an account, the document stated, includes rights of survivorship. Chester died on Feb.17, 2005, and left a will dated Aug. 19, 1986. The will provided a $5,000 bequest to a grandson and a residuary clause which divided his estate into equal shares between his two sons Joseph and Michael. Michael was the executor of Chester’s estate. He filed an inventory listing the total value of the estate to be approximately $117,000. The Advancial account was not listed as part of the estate. On Nov. 11, 2005, Joseph brought a declaratory judgment action against Michael, individually and in his capacity as executor of the estate, requesting the probate court declare the Advancial account was a joint account and include the proceeds in Chester’s estate. Also, Joseph alleged his brother Michael breached his fiduciary duty as executor by commingling the proceeds of the joint account with his personal funds, although he later dropped this allegation. Michael filed a general denial. On Jan. 10, 2006, Joseph filed a motion for partial summary judgment asking the court to declare the Advancial account a joint account and include the proceeds in Chester’s estate. In response, Michael filed a motion for summary judgment requesting the court declare the Advancial account a joint account with a right of survivorship and to dismiss Joseph’s claims against him. On May 1, 2006, the probate court granted Michael’s motion for summary judgment. Joseph appealed. HOLDING:Affirmed. Joseph, the court stated, argues that the Advancial account did not include a right of survivorship, because the application does not contain an unambiguous written contract signed by Chester establishing his intent to create such an account. The court disagreed. In order to establish a joint account with a right of survivorship, Texas Probate Code �439(a) requires a written agreement signed by the decedent sufficient to confer an absolute right of survivorship. Furthermore, the court noted that �439A(c) states that a financial institution may “make disclosures in the account agreement or in any other form which adequately discloses the information.” The record, the court stated, reflects the account application was signed by both Chester and Michael. The court noted that critical language just above the signature lines incorporated by reference the Account Agreement, Disclosures and Privacy Policy. The court noted that Account Agreement, Disclosures and Privacy Policy document expressly stated that multiple party accounts include rights of survivorship. This language of the agreement, the court stated, was sufficient to confer a right of survivorship, because “it is uniformly held that an unsigned paper may be incorporated by reference in the paper signed by the person sought to be charged.” Accordingly, the court concluded that the probate court did not err when it granted Michael’s motion for summary judgment finding that the Advancial account was a joint account between Chester and Michael with Michael retaining a right of survivorship. Applying general principles of contract construction, the court also found that the fact that Chester and Michael left the Payable on Death Designation box on the application blank not determinative of Chester’s intent to create an account with a right of survivorship. OPINION:Lang, J.; Morris, Lang and Lang-Miers, J.J.

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