-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.Page: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 NextLast modified: March 27, 2008