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trustee here was not required by the governing instrument to make
payouts conforming to those of a CRUT--at least not until the
untimely 2003 amendment--is fatal to the estate's position.
The estate also appears at times to suggest that we should
treat the 2003 amendment as a qualified reformation under section
2055(e)(3), since it limited payments to the noncharitable
beneficiaries to amounts that could be satisfied annually by 5
percent of the fair market value of the trust property. We
disagree. Since the payments to noncharitable beneficiaries in
the original governing instrument were not expressed as specified
dollar amounts or a fixed percentage of the fair market value of
the trust's assets as required by section 2055(e)(3)(C)(ii), the
only remaining option for reforming the trust was a judicial
proceeding commenced within 90 days after the return's filing,
pursuant to section 2055(e)(3)(C)(iii). The 2003 amendment was
executed beyond that deadline--indeed, well after respondent had
contacted the estate for purposes of an examination.16
Finally, the estate argues that the actions of the trustee
should satisfy section 2055(e)(3) under the doctrine of
16 We also note that the 2003 amendment appears ineffective
under Illinois law, insofar as the record discloses. As
discussed supra note 14, under Illinois law, amendment of the
trust required the consent of all noncharitable beneficiaries
with unexpired interests. There is no evidence that Migle
Francaite consented to the 2003 amendment or that her interest in
the trust had expired at the time the amendment was purportedly
made.
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