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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.
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