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distributions of income are limited by an ascertainable standard,
which is inconsistent with the QTIP requirement that the
surviving spouse be entitled to all income from the trust
property.
Conversely, the estate argues that respondent’s position
regarding revocation of the 1970 will is both procedurally and
substantively misplaced. The estate claims that the issue of
revocation was not pleaded and raised for the first time on
brief, such that its consideration would be prejudicial to the
estate at this stage in the litigation. Moreover, it is the
estate’s position that no evidence exists sufficient to support a
finding of revocation under Georgia law.
Thus treating the 1970 will as valid and controlling, the
estate contends that, after giving effect to the various
disclaimers, a QTIP deduction under section 2056(b)(7) is
appropriate with respect to the property passing to the Item V
trust. The estate avers that the disclaimers and Georgia law
enable the residuary trust to comport with the statutory
requirement that the surviving spouse be entitled to all income,
distributable at least annually. Furthermore, the estate
maintains that case law demands a broad and liberal
interpretation of the marital deduction and, at the very least,
that the disclaimers render the disposition here consistent with
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