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and 15 of the trust agreement must give way to decedent’s intent
to qualify for the marital deduction.
1. Disability Section Is an Administrative Provision
Section 8.D. of the marital deduction trust entitled
“Administrative Provisions” specifically incorporates by
reference to section 15 the terms of the disability section and
the other administrative provisions, sections 16 through 27, into
the marital deduction trust. Respondent argues that certain
terms in the disability section defeat the surviving spouse’s
“qualifying income interest for life”. The estate argues that
the disability section does not defeat the surviving spouse’s
“qualifying income interest for life”.
Additionally, the estate argues that the disability section
is merely a guardian substitute designation designed to avoid a
costly court proceeding under Arkansas law to name a court-
appointed guardian. That is, if the settlors of a trust fail to
designate a guardian in case of their incapacity, Arkansas law
provides for the naming of a guardian through a court proceeding.
See Ark. Code Ann. sec. 28-65-101(3) (Michie 1987) (“‘Guardian’
is one appointed by a court to have the care and custody of the
person or of the estate, or of both, of an incapacitated
person”). In this case, pursuant to the disability section,
decedent and Mrs. Whiting each designated who would be their
guardians. Decedent designated Mrs. Whiting as his guardian; and
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