Estate of Merle Allen Whiting, Jr., Deceased, Vicki Ann Whiting, Executrix - Page 16

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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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