Estate of Leona Engelman, Deceased, Peggy D. Mattson, Executor - Page 26

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          allegation.  First, respondent maintains that the explicit                  
          language of the trust agreement precludes any argument that a               
          disclaimer not effective under section 2518 can, nonetheless, be            
          effective under State law to bring into operation the provisions            
          of Trust B.  The trust instrument states that allocation to Trust           
          B would occur in the event that the surviving settlor                       
          “effectively disclaims (under Code Section 2518 or any successor            
          provision then in effect)”.  The estate counters that the                   
          foregoing terms create no express requirement but only an                   
          inference, alerting the trustee to be aware of the statute.                 
               Second, respondent contends that even if the disclaimer was            
          effective under State law, the property at issue passed to Trust            
          B as a result of a discretionary act of the executor in making              
          the disclaimer, and not because of an act by decedent.  It is               
          respondent’s position that decedent’s own actions in executing              
          the power of appointment and her subsequent death caused all                
          property to be treated at that time as subject to the Trust A               
          provisions.  To this point, the estate once again responds with             
          reference to the relation-back doctrine.                                    
               Third, with respect to the distribution to the State of                
          Israel, respondent avers that a deduction is not allowable in any           
          event because Trust B provides only for an unrestricted gift.               
          Accordingly, respondent characterizes the gift as having failed             
          the requirement that the donor restrict use of a gift made to a             






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Last modified: May 25, 2011