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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:
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