Estate of Dorothy Walsh, Deceased, Charles E. Walsh, Personal Respresentative - Page 11

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          be accumulated in the discretion of any person other than the               
          surviving spouse, or (2) the consent of any person other than the           
          surviving spouse is required to distribute the income.  Sec.                
          20.2056(b)-5(f)(7), Estate Tax Regs.  The power of appointment,             
          if exercisable during life, must be fully exercisable during                
          life.  If exercisable by will, the power must be fully                      
          exercisable regardless of the time of death.  A power of                    
          appointment is not exercisable in all events if it may terminate            
          during the life of the surviving spouse without his or her                  
          complete exercise or release of it.  Sec. 20.2056(b)-5(g)(3),               
          Estate Tax Regs.                                                            
               The incompetency provisions in Article VII of the Agreement            
          take the property passing to Trust A outside the statutory and              
          regulatory requirements for the marital deduction.  In Estate of            
          Tingley v. Commissioner, 22 T.C. 402 (1954), the surviving spouse           
          received an income interest and an inter vivos right to withdraw            
          corpus.  Under the terms of the trust, this right terminated upon           
          the surviving spouse's legal incapacity or upon the appointment             
          of a guardian; upon legal incapacity or the appointment of a                
          guardian, the trustee was given the discretion to use and apply             
          this part of the net income and corpus for the surviving spouse's           
          benefit.  The Court in Estate of Tingley held that the estate was           
          not entitled to the marital deduction mainly because the income             
          interest and power of appointment were outside the scope of the             
          predecessor to section 2056(b)(5).  This was so even though the             



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