- 48 - the estate tax “except in a case where a testator otherwise directs in his will”. N.Y. EPTL sec. 2-1.8(a). Decedent provided for the payment of estate taxes in the fifth article of the 1993 will. Accordingly, N.Y. EPTL section 2-1.8 is inapplicable. Furthermore, the estate relies on a presumption. Even if the law and public policy favor the marital deduction and presume that taxpayers wish to take advantage of it, the taxpayer’s express direction overrides this presumption. Decedent expressly stated on numerous occasions that he would rather pay tax than give up control of his estate. Whereas decedent indicated in 1988 that Bar should fight any valuation of the estate that he felt was excessive and decedent was willing to make $10,000-per- year gifts (although it is not clear that decedent still felt this way when he drafted the 1993 will), decedent wanted control over the property each beneficiary would receive and was not willing to give up this control in order to minimize estate tax. Decedent, when he rewrote his own will, eliminated language referring to the marital deduction and eliminated QTIP provisions from his wills. The estate also argues that N.Y. EPTL section 10-10.1 (McKinney 2003) provides that Bar was required to distribute all the income of the trust to Jo. We disagree. N.Y. EPTL section 10-10.1 provides:Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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