- 14 -
paid out of the trust, he did not reconcile that intent with the
language of the documents he drafted based on his contemporaneous
discussions with decedent and Mr. Miller. Smith's testimony is
self-contradictory to the extent that he describes in detail
decedent's desire to provide for her children but asserts in
general terms that she intended that the trust assets available
to them bear the burden of taxes on the entire estate.
Petitioner did not corroborate Smith's testimony with any
contemporaneous records, and no other witnesses were called,
despite identification of the trustee as a witness in
petitioner's trial memorandum. Smith's testimony does not
persuade us that decedent intended to place the entire tax burden
on the trust.
Petitioner also argues that the trust indicates that
decedent intended estate tax be paid solely by the trust.
Petitioner asserts that, by (1) including the trust in the
residuary, (2) empowering the trustee to pay the estate tax, and
(3) designating the residuary as the source of payment, the will
makes payment of the estate tax a mandatory obligation of the
trust and evinces an intent to maximize the marital deduction.
Specifically, section 10.1.13 of the trust grants the trustee the
discretionary power to pay the estate tax and directs that estate
tax payments be made only from the portion of the trust estate
included in the taxable estate of decedent. Petitioner argues
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011