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trust was the interest described by the decedent’s 1986
will, as originally drafted. Under the decedent’s 1986
will, Mrs. Rapp did not have the right to any income from
the trust property. She was entitled to receive income
from the trust only if the cotrustees determined in their
“absolute discretion” that she needed funds “for her proper
health, education and support.”
In this case, therefore, it does not matter when the
validity of the QTIP election is tested, as of the date of
the decedent’s death or as of the date of the election. At
no time did Mrs. Rapp have a qualifying income interest for
life in the trust, as defined by section 2056(b)(7)(B)(ii),
which passed from the decedent, as required by section
2056(b)(7)(B)(i)(I), and at no time did the trust property
in this case qualify as QTIP.
The Order of the Probate Court Is a "Qualified Disclaimer"
Under Section 2518(b)
Petitioner's third argument is that the order of the
probate court is, in effect, a "qualified disclaimer" as
defined by section 2518(b). Petitioner argues that the
trustees and the guardian ad litem "consented" to the
probate court's order reforming the decedent's will and, in
effect, disclaimed "the right and/or power of the Trustees
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