¶ 34. (concurring). This case may involve, as appellant Therese McGuire concedes, nothing more than an attempt to legally reduce federal estate taxes upon the death of Mary McGuire. At the same time, Therese argues that the means chosen to avoid taxation is at odds with the intent of the creator of the Trust, her father John McGuire, and that such *837means may significantly diminish the funds that will eventually pass to Therese's children. My quarrel with the majority is that it mischaracterizes Therese's argument and then knocks down a straw man of its own making. Although I agree with the result and part of the analysis in the majority opinion, I do not join with paragraphs 12 to 14 and 16 to 21. Accordingly, I respectfully concur.
¶ 35. On appeal, Therese argues for the first time that Article X of the Trust, a provision she characterizes as "comparatively minor," is invalid and should be stricken because it conflicts with the key feature of the Trust, the overall distribution plan put in place by John McGuire.1 The majority decision correctly points out that Therese does not argue ambiguity on appeal and that Therese's assertion that Article X is invalid has been waived. The majority then relies on waiver to reject Therese's Article X invalidity argument. Majority at ¶¶ 15,17. If the majority stopped there, I would have no need to write separately. However, the majority goes on to refute Therese's Article X argument, but does so by obfuscating Therese's argument. The majority correctly demonstrates that the Trust's primary goal is to provide for Mary McGuire during her lifetime. The majority suggests that Therese argues to the contrary: "While Therese might prefer otherwise, the terms of the Trust clearly demonstrate a preference for the income beneficiaries over the contingent beneficiaries." Majority at ¶ 19. I think the discussion in paragraphs 18 and 19 of the majority opinion purports to address Therese's central argument, but actually sets up a straw man and then knocks it down.
*838¶ 36. In my view, Therese concedes in the briefing on appeal that the first job of the trustees, according to the express terms of the Trust, is to provide for Mary McGuire's "reasonable support, care and comfort according to her standard of living during [John McGuire's] lifetime." Therese has no quarrel with the notion that the trustees may go so far as to completely deplete the Trust, thereby depriving subsequent generations, "if the use of the principal for any current income beneficiary seems wise." Therese admits this, but contends that the trustees sought circuit court approval of a plan that adds nothing to wisely providing for the "current income beneficiary," Mary McGuire. Rather, in Therese's view, the approved plan permits distributions from the Trust that undercut John McGuire's plain desire that funds not needed to maintain Mary McGuire's lifestyle be used in a specified way for the benefit of contingent beneficiaries. Two pertinent trust provisions are as follows:
If the aforesaid payments of income from this Trust together with Donor's wife's income from all other sources shall not be sufficient, in the discretion of the Trustees, to provide for her reasonable support, care and comfort according to her standard of living during Donor's lifetime, the Trustees may pay to her or apply for her benefit so much of the principal of this Trust as the Trustees may deem proper or necessary for that purpose....
.. . [T]he Trustees shall bear in mind that it is not Donor's intention to preserve principal for subsequent generations if the use of the principal for any current income beneficiary seems wise. The Trustees shall also take into account other resources available to the beneficiaries of which they have knowledge. Donor *839suggests, but does not require, that no distribution of principal shall be made to Donor's wife until the principal of the Marital Deduction Trust and Donor's wife's other assets, excluding any residence owned by Donor's wife, have been exhausted.
Therese's argument (that these and other trust provisions, taken as a whole, evidence John McGuire's intent that trust funds be used to maintain Mary McGuire's lifestyle during her lifetime, but that funds not needed for this purpose be distributed according to remaining trust provisions) is a reasonable construction. Furthermore, Therese's companion argument (that the plain meaning of Article X permits Mary McGuire and the other trustees to thwart this part of John McGuire's intent, because it permits Mary to approve payments to herself that exceed the amounts needed to maintain her lifestyle, thereby enabling Mary to both maintain her lifestyle and distribute funds to people of her choosing, while at the same time immunizing the trustees from all challenges to their decisions) is a serious argument which, had it been preserved, would warrant serious consideration.
¶ 37. Ultimately, however, I believe that holding Therese to waiver is the proper course. I disagree with Therese's characterization of Article X as a "comparatively minor provision" and her assertion that it can simply be deleted. Article X sets forth the accounting obligation of the trustees, a requirement needed, as the respondents point out, because the trusts are living trusts which are not subject to trust accounting requirements under Wis. Stat. § 701.16(4).2 Furthermore, *840I agree with the circuit court that Article X reflects John McGuire's clear desire to avoid disputes by giving the current income beneficiary authority to approve the actions of the trustees and to also relieve the trustees of liability to contingent beneficiaries. Article X may, on its face, permit actions inconsistent with other trust provisions, but it is hardly a minor provision.
¶ 38. While Therese now makes arguments to support her position that Article X conflicts with other trust provisions that are not easily dismissed, she has failed to propose a viable solution. In her appellate reply brief she contends that we may delete Article X pursuant to authority granted under Wis. Stat. § 701.13(6). That statute provides: "Nothing in this section shall prohibit modification or termination of any trust pursuant to its terms or limit the general equitable power of a court to modify or terminate a trust in whole or in part." However, I do not think it feasible to simply delete Article X. Furthermore, Therese has not suggested how we should modify Article X. Section 701.13(6) does not confer "general equitable power" to modify a trust, but rather explains that such power is not limited by § 701.13. Even assuming we have such power, Therese has not suggested a modification that is either affirmatively authorized by law or that squares with John McGuire's intentions.
To avoid cumbersome language, I will speak as if there is a single trust. In fact, a series of trusts are involved in this case.
I assume without deciding that the trusts at issue are living trusts. That is how they are described by the respondents and Therese does not contest that characterization.