- 41 - her interest in the trust does not qualify for the marital deduction.7 The estate contends that the language of the 1993 will is ambiguous. Even if the estate is correct, and we are permitted to look at extrinsic evidence, the extrinsic evidence does not support the estate’s contention that decedent intended (1) to leave his wife all the income from the trust, (2) to enable the estate to qualify for the marital deduction under the terms of the 1993 will, or (3) to minimize the estate’s tax liability. Before the time that decedent executed the 1993 will, the record shows that decedent was aware of the QTIP provisions and the marital deduction. Before the 1993 will, decedent had a will which contained a QTIP provision. Mr. Newman was aware of the marital deduction when he prepared decedent’s wills. Mr. Newman received specific directions from decedent regarding the provisions and language to be used in the 1993 will (as well as decedent’s prior wills that Mr. Newman worked on). The directions were detailed and explicit. In order to follow decedent’s directions, Mr. Newman was careful to make sure he used decedent’s words. Mr. Newman did not draft the following language contained in the 1993 will: “‘Jo’ is to receive as much 7 In light of our holding, we need not address the issue of whether the trust fails to qualify as a QTIP interest, and for the marital deduction, because Jo was not entitled to receive distributions payable annually or at more frequent intervals.Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
Last modified: May 25, 2011