Estate of Sarah M. Davenport, Deceased, Richard Davenport, Executor - Page 19

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          effected as of October 31, 2000, when decedent died.4                       
          Furthermore, this construction of the legally determinative                 
          settlement agreement is corroborated by the documentation                   
          contained in the record with respect to the Allstate and Safeco             
          annuity contracts.  Both contracts reflect decedent’s estate as             
          the beneficiary, and there is no evidence that any amending                 
          change of beneficiary had been made at the time of her death.               
               Given the foregoing, the Court will analyze inclusion of the           
          annuities under the rubric of section 2033.  The critical inquiry           
          thus becomes whether, and to what extent, decedent held a                   

               4 The examiner who audited the estate tax return testified             
          at trial that the estate represented at some point that the                 
          annuities were payable to a trust created after the date of                 
          death.  The estate never challenged that assertion.  The estate             
          then, and only on reply brief, twice referenced trusts.  The                
          first mention is set forth below:                                           
               While the funds were to provide care to the decedent                   
               during her lifetime, the ultimate disposition of those                 
               funds were [sic] not controlled by the decedent’s                      
               estate, but by her parents through their powers of                     
               attorney.  Indeed, these powers were exercised to                      
               transfer the remaining annuity payments to trusts                      
               established by the parents, consistent with the control                
               powers given to them under the Agreement.  [Emphasis                   
               added.]                                                                
          Second, in the context of explaining why the initial probate                
          inventory included the value of the annuities while later                   
          inventories did not, the estate commented that “the annuities               
          were never paid to or a part of decedent’s probate estate, but              
          instead were transferred to trusts created by the parents.”                 
          These remarks, when taken in the contexts presented, support an             
          inference that any redirection of annuity payments to a trust or            
          trusts took place subsequent to decedent’s death.  The estate               
          does not otherwise mention a trust or trusts or base any specific           
          argument on the existence of such an entity.                                




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