In Donnelly v. Donnelly, a widow sued her deceased husband’s son for failing to change the beneficiary designation on the husband’s IRA to name her. No. 14-21-00592-CV, 2022 Tex. App. LEXIS 7615 (Tex. App.—Houston October 13, 2022, no pet. history). The IRA account had the husband’s three sons listed as beneficiaries. The widow alleged that the husband told his son, who was his financial advisor, to change the beneficiary designation, and the son said that he had done so. After the husband died, the widow discovered that the beneficiary designation had not been changed and sued for breach of fiduciary duty. The trial court granted the son a summary judgment, and the widow appealed.

The court of appeals first held that the beneficiary designation was not ambiguous and her testimony about what the husband intended after its execution was not relevant to its validity. Further, the court of appeals affirmed the trial court’s striking of the widow’s affidavit discussing her husband’s statements due to the dead man’s rule. The court stated:

The Dead Man’s Rule provides that: “In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate, or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement.” Tex. R. Evid. 601. The purpose of the Dead Man’s Rule is threefold: (1) to put the parties on an equal footing at trial, (2) to prevent one, to the detriment of the other, from taking advantage of the fact 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 suit in which the deceased might deny the conversations and transactions if he were alive. Lewis v. Foster, 621 S.W.2d 400, 402 (Tex. 1981). The test has been stated as: If the witness offered should testify falsely, could the deceased, if living, controvert it by his own personal knowledge? Id.

Texas courts construe the Dead Man’s Rule narrowly. Quitta v. Fossati, 808 S.W.2d 636, 641 (Tex. App.—Corpus Christi 1991, writ denied) (citing Lewis, 621 S.W.2d at 404)). The rule does not prohibit testimony concerning statements by the deceased that are properly corroborated. See id. Corroborating evidence must tend to support some of the material allegations or issues that are raised by the pleadings and testified to by the witness whose evidence is sought to be corroborated. Id. It may come from any other competent witness or other legal source, including documentary evidence. Id. Corroborating evidence need not be sufficient standing alone, but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth. Id. For example, it is sufficient if the corroborating evidence shows conduct by the deceased that is generally consistent with the testimony concerning the deceased’s statements. Fraga v. Drake, 276 S.W.3d 55, 61 (Tex. App.—El Paso 2008, no pet.). Corroboration may come from any other competent witness or other legal source, including documentary evidence. Powers v. McDaniel, 785 S.W.2d 915, 920 (Tex. App.—San Antonio 1990, writ denied) (holding that checks reflecting property purchase were sufficient to corroborate oral agreement concerning sale of property).

Id. The court then found that the widow’s evidence was not sufficient to corroborate the statements:

Maria asserts that she presented evidence that:

• John was a member of the Briar Club;

• John testified that he had no reason to dispute that he met Maria and George for dinner at the Briar Club in June of 2017;

• George gave John a copy of his will during this meeting;

• George changed the beneficiary of his life insurance policy to Maria; and

• John, according to Maria, repeated George’s instruction to change the beneficiary of the IRA.

The alleged corroboration asserted by Maria does not tend to confirm and strengthen her testimony that George intended to change the IRA beneficiary, nor does it tend to show the probability of its truth. The fact that George changed the beneficiary of his life insurance to Maria and changed his will to bequeath his entire estate to Maria is not corroborative of his alleged intent to change his IRA beneficiary.

Maria’s allegation that John repeated George’s testimony is not corroboration as it is still Maria’s testimony. Corroboration of an interested party’s testimony may not emanate from her or depend on 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. Estate of Billings, 699 S.W.2d 259, 262 (Tex. App.—San Antonio 1985, no writ)). Maria is an interested party. Accordingly, we cannot look to Maria’s own affidavit to corroborate her affidavit. See id. None of the statements in Maria’s affidavit that purport to reveal George’s intent were corroborated by sufficient evidence reflecting conduct by George that is generally consistent with Maria’s testimony concerning George’s statements. We therefore conclude the trial court did not abuse its discretion in excluding Maria’s affidavit under the Texas Rules of Evidence.


The court then affirmed the no-evidence summary judgment on the breach of fiduciary duty claim because the widow did not have any evidence to support her claims (with her affidavit struck). The court stated: “The only evidence Maria presented to support her tort claims was her affidavit reporting the alleged instruction from George to John about changing the IRA beneficiary. The trial court excluded Maria’s affidavit and we have concluded the trial court did not err in excluding the affidavit. Therefore, Maria presented no evidence of a breach of any fiduciary duty or of a fact that was not disclosed.” Id.

Finally, the widow complained that the trial court placed the burden of proof on her as there was a presumption of unfairness that shifted the burden to the defendant. The court held, however, that there was no evidence of a self-interested transaction in the first place that would then shift the burden to the defendant:

The person challenging the validity of an instrument generally bears the burden of proving the elements of undue influence by a preponderance of the evidence. 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 cases involving confidential or fiduciary relationships, however, the burden shifts to the person receiving the benefit to prove the fairness of the transaction. Estate of Danford, 550 S.W.3d 275, 281-82 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (fiduciary relationship created by power of attorney shifted burden of proof to fiduciary to show fairness of transaction). In other words, when a fiduciary transacts with the principal or accepts a gift or bequest from the principal, a burden is placed on the fiduciary to demonstrate the fairness of the transaction. Estate of Grogan, 595 S.W.3d 807, 818 (Tex. App.—Texarkana 2020, no pet.). The gravamen of Maria’s complaint on this issue is that George told John to change the beneficiary of the IRA and John refused to do so and failed to tell George that he had not done so. Maria’s only evidence of an alleged transaction was her own self-serving affidavit, which the trial court properly excluded. Maria, therefore, offered no evidence of a transaction on which John could be required to offer evidence of fairness. Because there was no evidence of a transaction, the presumption of unfairness was never triggered. We overrule Maria’s second issue challenging the summary judgment on this ground.

Id. The court affirmed the judgment for the defendant except for an award of attorney’s fees.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law