Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 54




                                        -54-                                          
               The majority seems to imply that Christiansen’s daughter               
          should be treated as having constructively created and funded the           
          Trust when she made her disclaimer.6  This is not the right                 
          approach.  To treat Christiansen’s daughter as having created the           
          Trust when she made the disclaimer would involve a series of                
          convoluted steps, each of which either never occurred or violates           













               5(...continued)                                                        
          to a testamentary gift.  Such a testamentary gift ordinarily                
          would be subject to estate tax.  To treat the disclaimer in                 
          Walshire as qualified would enable the avoidance of tax on this             
          transfer.  Unlike Walshire, however, the situation here does not            
          afford an opportunity to avoid tax.  The estate has never                   
          disputed its obligation to pay tax on the amount attributable to            
          the contingent remainder held by Christiansen’s daughter.  The              
          estate seeks a deduction only for the fixed-value annuity to be             
          used for charitable purposes.  This is not akin to a testamentary           
          gift where tax would be avoided.  Moreover, in the event                    
          Christiansen’s daughter does not outlive the term of the Trust,             
          the corpus will also pass to the Foundation to be used for                  
          charitable purposes.  The estate is thus paying tax on the                  
          transfer of some property that ultimately may go to charity.                
               6The Trust was unfunded at the time of trial and would only            
          be funded from the disclaimed funds.  The estate’s counsel                  
          testified, however, that it is common estate planning practice              
          not to distribute funds from the estate until matters have been             
          resolved.                                                                   





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Last modified: March 27, 2008