Limitations on the Dead Hand

Question 1

RAP

Answer 1

An interest is void if it might vest too late

Question 2

RAP is a matter of proof - if the interest is void

Answer 2

you can find an invalidating scenario

Question 3

RAP is a matter of proof - if the interest is valid

Answer 3

you can find a validating life

Question 4

“an interest”

Answer 4

Each interest in an instrument is looked at separately

Question 5

“is void”

Answer 5

ab initio - from the start, at the moment of creation, strike the language not the entire instrument

Class gift? Bad as to all

Question 6

“might”

Answer 6

What might happen as of when the RAP period starts to run

Question 7

“vest”

Answer 7

RMs: BOTH
1) conditions precedent are satisfied and
2) a taker is identified

EI: vest in possession

Question 8

“too late”

Answer 8

More than 21 years plus periods of actual gestation after deaths of all alive persons when the thing was created

Question 9

Period of actual gestation in various instruments

Answer 9

Will: death of T
Ordinary Gift: delivery
Inter vivos transfers in trust: when irrevocable
Power of appointment: when power is exercised

Question 10

Case of unborn widow

Answer 10

Do not assume that a person’s widow is the current wife or has even been born yet

Question 11

Case of slothful executor

Answer 11

Do not assume that the administrative tasks will be done in a reasonable amount of time

Question 12

Split contingencies doctrine

Answer 12

Applies when two ways of vesting are set out separately

Question 13

Lucas v. Hamm

Answer 13

States that the malpractice might not apply to RAP because it is tough to understand

Question 14

Rule against the accumulation of income

Answer 14

Trusts cannot accumulate income for too long, often defined by the period of RAP (some states)

Question 15

RAP reform: narrow statute

Answer 15

Get ride of fertile octogentarian + unborn widow

Question 16

RAP reform: common law

Answer 16

Judge can carve out exceptions (allow extrinsic evidence for proof of things)

Question 17

Cy pres RAP instruments

Answer 17

Get rid of the bad, achieve the donors intent

Only way: insert a savings clause

Question 18

Wait-And-See

Answer 18

an interest is void if it does vest too ate - wait for measuring lives to end and then 21 years + 10 months - after that: void

Question 19

USRAP

Answer 19

1/2 states
Wait-and-see
An interest is OK if: (1) vests in 90 years or (2) is good under common law rule
Cy pres void interest
Prospective only

Question 20

USRAP tax trap

Answer 20

Trust can lose grandfathering from GST if donee of special power exercises in the wrong way

Question 21

Avoiding GST

Answer 21

1) turn trust into 90-year trust
2) make sure not to violate common law RAP when exercising the power

Question 22

Abolition of RAP

Answer 22

Trusts/personalty only

Banks race to the bottom

Question 23

Benefits of RAP

Answer 23

Facilitates efficient transfer

Reduces dead hand

Reduces uncertainty from contingent changes

Adds enjoyment from ownership of future interests

Avoids the first-generation monopoly

Reduces problem of accumulations

Reduces the problem of multiplication beneficiaries

Question 24

Cost of RAP

Answer 24

Want things done as to their expectation

Question 25

Spousal protection

Answer 25

Protect spouses from destitution depends on CPS or NCPS

Question 26

NCPS protections

Answer 26

1) T/E
2) Dower (few states left, MI recent)

Question 27

Dower

Answer 27

The surviving spouse takes a life estate in 1/3 of the
lands 1) in which the decedent was seized during
coverture and 2) that was inheritable by issue of the
marriage

Not subject to the claims of the spouses creditors

Question 28

Elective share

Answer 28

The surviving spouse can waive or renounce the will and take a share specified by statute (often 1/3)

Question 29

Statutory elective share

Answer 29

1) Partnership
2) Support

Question 30

Statutory elective share of:

Answer 30

Common Law: probate estate

UPC 1968: augmented estate

UPC 1990: (2)
1) augmented state + survivor’s assets
2) community property state share

Question 31

How much of the share?

Answer 31

1969: 1/3
1990:
1) 1/2
2) Sliding scale based on marriage years

Question 32

Why do people intermigrate from CPS to NCPS

Answer 32

Tax breaks to quasi property breaks

Question 33

Children protection?

Answer 33

No

Question 34

Incentive trusts

Answer 34

Partial restraints are allowed (but total destruction is not allowed)

Question 35

Discrimination based on sex

Answer 35

Two options:
1) cy pres: remove sex based
2) exercise equitable power and make the administrative change themselves

Question 36

Race discrimination

Answer 36

Not allowed because against public policy