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Mr. Kadish admitted in testimony that he had never discussed the
topic of disclaimer with decedent, but that instead he had relied
on what Mr. Meyer told him about decedent's intentions. If
Messrs. Meyer and Kadish were confident that decedent's
expression of intent to disclaim in December 1992 constituted a
disclaimer, then why did they prepare Exhibit 8-H, a draft of a
written disclaimer, in March 1993? If Exhibit 8-H were
superfluous, why would Mr. Meyer admit in testimony that his firm
had been negligent in failing to see to it that decedent executed
Exhibit 8-H? If petitioner's position carried any weight, which
it does not, a great portion of it would fall on petitioner's
contention that Exhibit 5-E satisfied the written disclaimer
requirement of section 2518(b). According to petitioner, the
purpose of Exhibit 5-E was:
To identify which assets were Mom's [Mrs. Chamberlain's]
property, which were his [decedent's] property, and
which were joint property to effect the plan to settle
the estate, the estate plan.
* * * * * * *
He had for a long time [discussed disclaiming J
assets], and while we were going over this document, he
was talking about these would be the assets he would
disclaim.
Petitioner's testimony was in the subjunctive future tense and
does not say that Exhibit 5-E was a disclaimer or even intended
to be one. If decedent had intended Exhibit 5-E to be a
disclaimer, we believe that he would have considered it important
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