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§ 8.7 REMAINDER INTERESTSand one for the education of future clergy. The net assets of the trust for the survivingsister were to roll over to the foundation. A federal court ruled that thedecedent’s will provided for three trusts and that, therefore, a split-interestbequest inconsistent with the tax rules has not been created. An appellate courtdisagreed, ruling that the estate’s claim for a refund on the basis of a charitablededuction must fail because the estate did not satisfy any of the specifically prescribedmethods of creating 232 or reforming a split-interest trust. In part, thecourt was concerned about the amount that might have to be expended for medicalcare and other support for the surviving sister. Wrote the appellate court:“There is no justification for a judicial divination of an unstated congressionalintent to make an exception for the charitable bequest in this case.” 233The estate in this case relied heavily on an earlier opinion from another courtof appeals, in which an estate tax charitable deduction was allowed when a splitinterestproblem was resolved so that the entire estate could be accurately andpermanently separated between charitable and noncharitable beneficiaries. 234 Inthat case, the government made the same argument as it did in the more recentcase. The court distinguished the earlier case from the more recent case, however,on the ground that in the prior case, the “amount payable to the noncharitablebeneficiaries was limited, and could be firmly assessed and separated fromthe charitable bequest.” 235 Moreover, in the earlier case, the split interest couldhave been reformed. For the outcome in the prior case to occur, held the court,the property in which the noncharitable beneficiary had an interest must becapable of being measured and severed from the solely charitable property inthe estate. In the more recent case, the court continued, “there is no way todivide the entire estate between the charitable and noncharitable beneficiariesbecause their interests continue to conflict.” 236In another case, a court held that a trust met the requirements for reformation,for federal estate tax charitable deduction purposes, including the requirementthat the will containing the trust be executed prior to 1979, even though a codicilto the will was executed in 1982. 237 An individual executed her first will in 1971,creating a trust with a charitable remainder for the benefit of a college and anannuity payment to an individual. A 1972 codicil changed a nontrust portion ofthe will; a 1977 codicil again made some nontrust changes and increased theannuity payment; a 1982 codicil again increased the annuity amount. Each codicilstated that, in all other respects, the provisions of the will were confirmed. Afterthis individual died, the personal representative of the estate caused the trust tobe reformed, in that it originally did not meet the statutory requirements, so thatthe estate could benefit from the estate tax charitable deduction. The IRS subsequentlydetermined that the trust did not meet certain of the reformation requirements,including the rule that the will be executed before 1979, 238 and denied the232 See Chapter 12.233 Johnson Estate v. United States, 941 F.2d 1318, 1321 (5th Cir. 1991).234 Oetting v. United States, 712 F.2d 358 (8th Cir. 1983).235 Johnson Estate v. United States, 941 F.2d 1318, 1320 (5th Cir. 1991).236 Id. at 1321.237 Wells Fargo Bank v. United States, 91-1 U.S.T.C. 60,067 (C.D. Cal. 1990).238 See text accompanied by note 230. 261