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ESTATE AND GIFT TAX CONSIDERATIONScharitable organizations was the residue of the estate. As noted, the law requiresthat the amount destined for charity must be presently ascertainable at the timeof death; what actually happens to the money and/or property thereafter isirrelevant. 250The will involved in this case gave the personal representatives “sole andcomplete” discretion to make these gifts. The court lamented the absence of anyfixed standard to be applied to this discretion. It noted that there was no limit asto the number of persons who might be so compensated; the decedent lived 60years and the court observed that many persons had probably been “helpful” tohim during his lifetime. The court did not know how to set limits on the meaningof words such as “well-being” and “helpful.” Other unanswered questionsplagued the court, such as the size of the various contributions and the period oftime over which they were to be made. Wrote the court: “These elements areuncertain and cannot be measured with any precision, and therefore they makethe amount going to charity unascertainable at the time of death.” 251 Thisvagueness in the language of the will forced the court to rule that the charitablededuction was not available.This opinion, and others like it, do not stand for the proposition that anyamount of discretion or lack of certainty will always doom an estate tax charitablecontribution deduction. If a standard is fixed and can be stated in definiteterms of money, and if there is a reasonable likelihood that money and/or propertywill in fact be transferred for charitable purposes, the deduction will not bedefeated. As the Supreme Court stated years ago, on that point, there is “nouncertainty appreciably greater than the general uncertainty that attends humanaffairs.” 252What often happens in this area is that the will enables the personal representativeto invade the principal of the estate (the amount that is, on the face of thewill, going to charity) for the comfort, support, maintenance, and/or happiness ofthe surviving spouse. On one occasion, the Supreme Court held that the discretionaccorded a personal representative to determine elements such as “happiness”defeated the charitable deduction. 253 By contrast, an appellate court in prior(and somewhat similar) cases, found ascertainability. In one case, the representative’sdiscretion was limited to the needs and prior lifestyles of the beneficiaries.The court wrote that the “possibility that the charitable bequests would fail or bediminished was so remote as to be nil.” 254 In another instance, the court foundthat the representative’s power to pay principal to a beneficiary was limited by anascertainable standard and “hence there is no argument that the deductibility ofthe charitable remainder is destroyed by the power of invasion.” 255In a subsequent case, the decedent’s will provided for a charitable remainderin a reformed 256 charitable remainder trust. The will also provided, however, for250 See, e.g., Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595 (1949).251 Marine Estate v. Commissioner, 990 F.2d 136, 139 (4th Cir. 1993).252 Ithaca Trust Co. v. United States, 297 U.S. 151, 154 (1929).253 Merchants Bank v. Commissioner, 320 U.S. 256 (1943).254 Commissioner v. Robertson’s Estate, 141 F.2d 855, 858 (4th Cir. 1944).255 Greer v. United States, 448 F.2d 937, 944 (4th Cir. 1971).256 See § 8.7(b). 264