Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 41

                                       - 41 -                                         

             to accumulate income of the marital trust during Laura's                 
             lifetime."  Petitioner takes this position in the                        
             alternative to its position, discussed above, that the                   
             order of the probate court was "a decision of a local court              
             upon the merits in an adversary proceeding".  According to               
             petitioner, "the effect of such a qualified disclaimer is                
             that the income interest must be deemed to have passed from              
             the Decedent to Laura [i.e., Mrs. Rapp]."                                
                  Respondent argues that the Court should not consider                
             this issue, viz, whether the probate court's order meets                 
             the requirements of a qualified disclaimer under State or                
             Federal law, because it was raised for the first time in                 
             petitioner's post-trial brief.  As a result, respondent                  
             complains, the Government was deprived of an opportunity to              
             introduce evidence at trial that would have had a bearing                
             on the issue.  In this regard, respondent notes that one of              
             the cotrustees, Mr. David Rapp, and the guardian ad litem,               
             Mr. Rae, were not called to testify at trial, and respon-                
             dent did not examine the other cotrustee, Mr. Richard Rapp,              
             about this issue.  Respondent also raises a number of                    
             substantive issues about whether the probate court's order               
             constitutes a qualified disclaimer under either Federal or               
             California State law.  Finally, respondent argues in the                 







Page:  Previous  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  Next

Last modified: May 25, 2011