- 45 -
Accordingly, the extrinsic evidence fails to show that
decedent intended that Jo be “entitled to all the income” from
the trust.
The estate argues that after giving proper regard to the
Surrogate’s Court decree, the trust qualifies as a QTIP interest.
We disagree.
The Surrogate’s Court decree did not merely clarify the 1993
will. The 1993 will did not require that all the income go to
Jo; the Surrogate’s Court decree, however, required all the
income to go to her. The 1993 will did not require payments to
be made at any specific time; the Surrogate’s Court decree,
however, mandated “monthly, quarterly, or other convenient
payments of nearly equal amounts as possible during her lifetime,
provided, however, that in no event shall such payments be made
less frequently than semi-annually.” The Surrogate’s Court
decree also made voluminous other changes to the trust provided
for by decedent in the 1993 will. The Surrogate’s Court decree
is more than a mere clarification; it is a substantial change in
the 1993 will (and the trust created therein) made after
respondent had secured rights under the 1993 will. Accordingly,
we will not give it effect. See Estate of Nicholson v.
Commissioner, supra at 681; see also Commissioner v. Estate of
Bosch, 387 U.S. 456 (1967).
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