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examining the cotrustees and the guardian ad litem about
the various factual elements of the definition of qualified
disclaimer under section 2518(b) and section 278 of the
California Probate Code. Therefore, respondent would be
prejudiced if we were to consider this issue.
Moreover, even if we were to agree to consider this
issue, we would have to find, on the basis of the record
made at trial, that petitioner did not meet its burden of
proving that the probate court's order constituted a
qualified disclaimer. See Rule 142. As quoted above, a
qualified disclaimer is "an irrevocable and unqualified
refusal by a person to accept an interest in property".
Sec. 2518(b). Petitioner argues in its post-trial brief
that "The interest disclaimed was the right and/or power of
the Trustees to accumulate income of the marital trust
during Laura's lifetime." However, there is nothing in the
record of this case to prove that the trustees disclaimed
anything. The order of the probate court on which
petitioner relies is the action of the probate court and
not the action of any of the parties to that proceeding.
See Harris v. Commissioner, 340 U.S. 106, 110 (1950).
Neither of the trustees in this case, Mr. Richard Rapp or
his brother, testified that either of them made a qualified
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