- 46 -                                         
             marital deduction should be allowed, because the Trustees                
             had a fiduciary duty to * * * [Mrs. Rapp] to comply with                 
             the QTIP rules."  Petitioner's post-trial brief further                  
             states as follows:                                                       
                  Petitioner submits that the Trustees were under a                   
                  fiduciary duty to commit to pay all of the income                   
                  to Laura [i.e., Mrs. Rapp], both because of her                     
                  need to receive such income and because it would                    
                  be detrimental to her legitimate interests under                    
                  the Will to pay a large estate tax at the                           
                  Decedent's death.                                                   
                  The thrust of petitioner's argument is that the                     
             trustees are bound to pay all of the income of the trust to              
             Mrs. Rapp because otherwise the trust would not qualify for              
             the marital deduction and the estate would be liable for                 
             estate taxes of more than $2 million, and that would be                  
             contrary to Mrs. Rapp's best interests.  Petitioner argues               
             that Mrs. Rapp, thus, had a "qualifying income interest for              
             life" in the trust, as required by section 2056(b)(7)(B)                 
             (ii), and the trust property qualifies as QTIP.                          
                  In support of this argument, petitioner cites section               
             16081(a) of the California Probate Code, under which                     
             trustees are directed to "act in accordance with fiduciary               
             principles and * * * not act in bad faith" even if a trust               
             instrument confers absolute, sole, or uncontrolled                       
Page:  Previous   32   33   34   35   36   37   38   39   40   41   42   43   44   45   46   47   48   49   50   51   NextLast modified: May 25, 2011