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Mrs. Rapp is not entitled to receive "all the income from
the property, payable annually or at more frequent
intervals", as required by section 2056(b)(7)(B)(ii)(I).
Accordingly, as the decedent's 1986 will was originally
written, the property which formed the corpus of the
testamentary trust is not QTIP and is not eligible to be
included in the marital deduction. Sec. 2056(b)(1).
The decedent's 1986 will was reformed by the order of
the probate court issued on October 31, 1988, quoted above.
As reformed, Article Fifth (b) of the decedent's will
directs the trustees to "pay the net income from the corpus
of the trust annually or at more frequent intervals to or
for the benefit of LAURA B. RAPP, during her lifetime."
The reformed will also expressly authorizes the executor to
elect to treat the property held in the trust as QTIP.
Petitioner argues that the corpus of the trust can be
included in the marital deduction for four reasons. First,
petitioner argues that on the date of the decedent's death
Mrs. Rapp had an enforceable right under California law to
obtain reformation of the decedent's 1986 will as approved
by the order of the probate court and that the order of the
probate court should be respected for Federal estate tax
purposes. Second, petitioner argues that the QTIP rules
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