OPINION
Introduction
Aрpellants Joseph Lee, Virginia Lee, and Patricia Lee Barrow appeal from the probate court’s grant of summary judgment in favor of Appellee Opal Lee, temporary administrator of the estate of Dale Lee. 1 In three issues, appеllants contend that: (1) the trial court erred in striking appellants’ summary judgment evidence; (2) the trial court erred in granting appel-lee’s motion for summary judgment on the basis of an alleged judicial admission; and (3) appellee’s summary judgment motion *639 failed to overcome thе legal presumption that decedent acted without fraud. We will affirm.
Statement of Facts
Appellants are the nieces and nephew of decedent. Decedent purchased a certificate of deposit in the name of “Dale T. Lee (Trustee) For Patricia Lee Barrow” on February 15, 1984. He bought a second CD bearing the name “Dale Timothy Lee Trustee For Joseph H. Lee III” on February 16, 1988. A third CD was purchased by decedent on August 21, 1995 for Virginia K. Lee. 2 Decedent died intestate on March 13, 1997. Thereafter, appellee, decedent’s widow, was named as temporary administrator of his estate.
Appellee sent a letter to Savings of America, Inc. (“SOA”), the bank at which the CDs were held, informing them that the three CDs were bought with community property without her consent or knowledge. She also instructed SOA to not releаse any funds from the accounts to the appellants. Despite this letter, SOA distributed the account funds to the appellants. Appellants never informed appellee that they withdrew the money from the accounts.
Appellee filed the “Inventory, Appraisement, and List of Claims” with the probate court on July 16, 1998. The three CDs at issue were listed on the Inventory as community property. At the time of filing the Inventory, appellee did not know that the three accounts had been closed. The probate court held a hearing on January 13, 1999, to approve the Inventory. At this hearing, appellee agreed to change the characterization of two pieces of real property unrelated to this case. Appellants agreed that after the amended inventory was filed, reflecting only the changes to the unrelated real property, it could be approved by the court. Appellants neither objected to the CDs being listed as community property nor informed the court that the accounts had been closed. The amendеd inventory was filed on January 25, 1999 and approved on February 12, 1999.
After the inventory was approved, ap-pellee discovered that the CDs had been cashed. She then filed suit, on behalf of the estate, against appellants to recover the money. Appellee moved for summary judgment on the sole ground of judicial admission, claiming that appellants had agreed to the characterization of the CDs as community property during the estate inventory hearing. Summary judgment was entered against appellants, and they аppealed.
Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c);
Calvillo v. Gonzalez,
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true.
Harwell v. State Farm Mut. Auto. Ins. Co.,
The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action as a matter of law.
City of Houston,
Summary Judgment Evidence
In their first issue, appellants argue that the trial court erred in striking their summary judgment evidence because it was not defective and should have been given full consideration by the court. The evidence in question consists of bank documents attached to appellants’ response to appellee’s motion for summary judgment, the affidavit of appellants’ counsel, and the deposition testimony of appellee.
Appellee’s deposition testimony was incorporated into appellants’ response to ap-pellee’s summary judgment motion. Ap-pellee objected to this evidence on hearsay grounds. In its order granting summary judgment, the trial court explicitly sustained appellee’s objections to the bank documents and counsel’s affidavit, but it did not rule on this particular objection. Absent any adverse ruling, we do not address appellant’s arguments with respect to appellee’s deposition testimony. We will consider issue one only as it relates to the exhibits and affidavit that were actually struck by the trial court.
Aрpellants complain that bank documents, labeled as Exhibits A, A-l, and A-2, all of which were attached to counsel’s affidavit, were improperly stricken by the trial court. Exhibit A is the affidavit of the custodian of records of SOA establishing the predicate for the business records еxception. See Tex.R. Evid. 803(6). Exhibits A-l and A-2 are documents from SOA showing the names listed on two of the accounts at issue. Appellee objected to these documents because they were not sworn or certified copies as required by Rule 166a(f).
Rule 166a(f) of the rules of civil procedure states that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” TexR. Civ. P. 166a(f). The failure to attach copies which have been sworn or certified constitutes a defect in the substance of the affidavit.
Gorrell v. Texas Util. Elec. Co.,
Because Exhibits A, A-l, and A-2 were not sworn or certified copies, the trial court properly struck them from the evidence. We also note, however, that these same documents were properly considered by the trial court as competent summary judgment evidence because they were correctly attached to appellee’s motion for summary judgment. See TexR. Crv. P. 166a(c).
Appellants also urge that the trial court erred in striking their counsel’s affidavit in response to aрpellee’s objection that it was not competent summary judgment proof. *641 Appellee’s objection was based on the fact that the affidavit alleged that the contents were “trae and correct to the best of my knowledge and belief.”
Affidavits which are based on the affiant’s best knowledge and belief do not meet the strict requirements of Rule 166a.
Ryland Group, Inc. v. Hood,
Community Property
In their second issue, appellants contend that the trial court erred in granting summary judgment on the basis that statements made by their counsel concerning the inventory of the estate assets constituted judicial admissions, that is, that the CDs were community property.
According to the family code, property possessed by either spouse on dissolution of marriage is presumed to be community property. Tex. Fam.Code Ann. § 3.008(a) (Vernon 1998). This presumption applies tо dissolution by death as well as divorce.
Smith v. Lanier,
Appellants admit that the CDs were purchased with community funds, but argue they are not cоmmunity property of the estate. According to their argument, because the CDs were part of the decedent’s sole management community property, he could give it to his nieces and nephew if he wished, as long as the gifts did not constitute fraud on the community. However, this argument is defeated if appellants’ counsel did make a judicial admission that the CDs were part of the community estate.
A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue and bars the admitting party frоm disputing it.
Dowelanco v. Benitez,
In this case, appellants’ counsel stated that he had no objections to the amended inventory of the estate being filed, which listed the CDs as сommunity property. Appellants neither challenged the amended inventory nor asked the trial court to reconsider it. During the hearing to approve the inventory, the trial court asked appellants’ counsel if he agreed “that once [appellеe’s counsel] has filed the amended inventory showing the modifications as agreed upon here today [concerning two pieces of real property], that the Court may go ahead and approve the inventory?” Counsel responded, “I do, Your Honor.” This stаtement, when read in context of the hearing, is a clear and unequivocal approval of the inventory and the characterization of the CDs as community property. This is contrary to appellants’ defense in this case that the accounts were givеn to them by decedent, and therefore, were not part of the community property estate. The statement does not destroy, but in fact supports, appellee’s theory of recovery. Likewise, holding that this statement is a judicial admission supports the public policy stated above. We therefore overrule appellants’ second issue.
Fraud on the Community
In their third issue, appellants contend that the trial court erred in granting summary judgment because appellee’s motion failed to overcome the legal presumptiоn that decedent acted without fraud in making a gift of community assets. 4
We have already concluded that appellants judicially admitted that the CDs were community estate property. Absent a showing that the property is outside of the community estate, the issue of frаud on the community never arises.
See Zieba v. Martin,
Conclusion
Having overruled all of appellants’ issues, we affirm the trial court’s judgment.
Notes
. Summary judgment was also entered against Savings of America, Inc., who also appealed. However, before the case was submitted for consideration, appellee and Sаvings of America settled, and Savings of America’s appeal was dismissed.
. The certificate payable to Virginia Lee could not be located, but its similar characterization was not questioned.
. Appellants argue that although the inclusion of the above рhrase rendered the affidavit incompetent as summary judgment evidence, it should still have been considered because the affiant was a licensed attorney and it was filed with formal pleadings. No supporting authority is cited by appellant in support of this argument.
. Appellants correctly argue that a spouse may make moderate gifts for just causes to persons outside the community.
See Osuna v. Quintana,