Property: The Rule Against Perpetuities Flashcards
Common Law
An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years (plus a gestation period) after some life in being at the “creation” of the interest.
For wills, an interest is created at the testator’s death.
On the UBE, a grantor transfers property by will if she “devises” the property.
For deeds, an interest is created at the time the deed is delivered.
On the UBE, a grantor transfers property by deed (inter vivos) if she “conveys” the property.
For revocable trusts, an interest is created at the settlor’s death, unless—before death—the settlor amended the trust making it irrevocable.
For irrevocable trusts, an interest is created on the date the trust is created.
O transfers Blackacre “to A for life, remainder to the first child of A to reach age 21.” A is alive and has one child, B, who is 19.
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What is the result?
G. USRAP result?
A-A has a Life Estate, followed by a Contingent Remainder in Fee Simple and a Reversion in O.
B- Yes, the Contingent Remainder
C- The first child of A to reach 21
D-A (because B is a member of an open class)
E- Yes, because if A has a child that reaches 21, it will be within 21 years of A’s death
F- he Contingent Remainder is valid
G-Same as common law
O transfers Blackacre “to A for life, remainder to the first child of B to reach age 25.” A and B are alive, and B has one child, C, who is 19.
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
H. Would your answer (under common law) change if B were dead at the time of the conveyance?
I. Would your answer (under common law) change if B were 89 years old and medically incapable of bearing children at the time of the conveyance?
A- A has a Life Estate, followed by a Contingent Remainder in Fee Simple and a Reversion in O.
B- Yes, the Contingent Remainder
C- The first child of B to reach 25
D- B (because C is a member of an open class)
E- No, because B could have another child (D), and then A, B, and C could die. D would not reach 25 within the RAP period
F- The Contingent Remainder is invalid ab initio. A has a Life Estate and O has a Reversion.
G- The Contingent Remainder is valid for a maximum of 90 years.
H- Yes, the Contingent Remainder would be valid because C could serve as the life in being. If C were ever to reach the age of 25, it would be within C’s lifetime.
I- No, the Contingent Remainder would still be invalid. C could not serve as the life in being because the law assumes any person—regardless of age or medical condition—can have children. This is the Fertile Octogenarian Rule.
O transfers Blackacre “to A and her heirs for so long as Blackacre is used for farming; if A or her heirs cease using Blackacre for farming, to B and his heirs.”
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
H. Would your answer (under common law or USRAP) change if two years after the conveyance, A stops farming and builds a department store on the land?
A- A has a FSSEL and B has a Shifting Executory Interest
B- Yes, the Shifting Executory Interest
C- Discontinuance of Farming
D- A or B
E- No, because Blackacre could be used for farming for the next 1,000 years
F- The Shifting Executory Interest is invalid ab initio. Scratching right to left (“to A and her heirs for so long as Blackacre is used for farming; if A or her heirs cease using Blackacre for farming, to B and his heirs”), A has a FSD and O has a Possibility of Reverter
G- The Shifting Executory Interest is valid for a maximum of 90 years
H-
Common Law:
The Shifting Executory Interest is still invalid because the common law judges an interest at the time of creation
USRAP:
Because the 90-year wait-and-see period is still running, the Shifting Executory Interest would vest in possession
O transfers Blackacre “to A and her heirs, but if A or her heirs use Blackacre for some purpose other than farming, to B and his heirs.”
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
A- A has a FSSEL and B has a Shifting Executory Interest
B- Yes, the Shifting Executory Interest
C- Discontinuance of Farming
D- A or B
E- No, because Blackacre could be used for farming for the next 1,000 years
F- The Shifting Executory Interest is invalid ab initio. Scratching right to left (“to A and her heirs, but if A or her heirs use Blackacre for some purpose other than farming, to B and his heirs”), A has a FSA
G- The Shifting Executory Interest is valid for a maximum of 90 years
O transfers Blackacre “to A and her heirs, but if A uses Blackacre some purpose other than farming, to B and his heirs.”
Result?
A has a FSSEL, and B has a valid Shifting Executory Interest
Rule of Construction for Courts:
If feasible, a conveyance should be interpreted to avoid the conclusion that it violates the rule against perpetuities.
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Application: Here, the defeasing event may be construed as applying solely to A, and not to other possessors. If A ever discontinues farming, it will be during A’s lifetime.
USRAP result?
Same as common law
O transfers Blackacre “to A for life, remainder to A’s children who reach 35. At that time, A is alive and has one child, B (age 37).
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
A- A has a Life Estate and B has a Vested Remainder Subject to Open
B- Yes, the Vested Remainder Subject to Open
C-A’s children—as a class—reaching the age of 35
D- A (because B is a member of an open class)
E- No. For purposes of RAP, Vested Remainders Subject to Open must comply with the “All or Nothing Rule.” According to this rule, a Vested Remainder Subject to Open is valid only if it is sure to vest for all of A’s children during the RAP period. Here, if A has another child (C) and then A and B both die, C’s interest would not vest during the RAP period.
F- The Vested Remainder Subject to Open is invalid ab initio. A has a Life Estate and O has a Reversion.
G- The Vested Remainder Subject to Open is valid for a maximum of 90 years.
O transfers Blackacre “to A for life, then to A’s widow for life, then to A’s children who survive A’s widow.” A has two children at the time of the conveyance.
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
A- A has a Life Estate, A’s widow has a Contingent Remainder in a Life Estate, A’s children have a Contingent Remainder in Fee Simple, and O has a Reversion
B- Yes, both Contingent Remainders
C- Widow’s Contingent Remainder: Qualifying as a widow Children’s Contingent Remainder: Closing the class and surviving the widow
D- A (because A’s children are members of an open class and a widow cannot serve as a life in being)
E- Widow’s Contingent Remainder: Yes, because A will either have or not have a widow on the date of his death
Children’s Contingent Remainder: No, because A’s widow may survive A by more than 21 years
F- A has a Life Estate, A’s widow has a Contingent Remainder in a Life Estate, and O has a Reversion
G- The children’s Contingent Remainder is valid for a maximum of 90 years
O transfers Blackacre “to A for life, then to A’s widow for life, then to A’s children.” A has no children at the time of creation.
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. What is the condition of vesting?
D. Who is the most appropriate measuring life for such condition?
E. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
F. What result?
G. USRAP result?
A- A has a Life Estate, A’s widow has a Contingent Remainder in a Life Estate, A’s children have a Contingent Remainder in Fee Simple, and O has a Reversion
B- Yes, both Contingent Remainders
C- Widow’s Contingent Remainder: Qualifying as a widow
Children’s Contingent Remainder: Closing the class (never presume a survival requirement)
D- A (because a widow cannot serve as a life in being)
E- Widow’s Contingent Remainder: Yes, because A will either have or not have a widow on the date of his death
Children’s Contingent Remainder: Yes, because all of A’s children will be known at his death, thus closing the class; at A’s death, his children will have an Indefeasibly Vested Remainder
F- A has a Life Estate, A’s widow has a Contingent Remainder in a Life Estate, A’s children have a Contingent Remainder in Fee Simple, and O has a Reversion
G- Same as common law
O transfers Blackacre “to A for life, then to A’s children for their lives, and on the death of the last survivor of A’s children, to B in fee simple.” A and B are both alive, and A has two children at the time of creation.
A. What interests are created (assuming no RAP problems)?
B. Are any interests subject to RAP?
C. Why is B’s future interest not subject to RAP (since B’s possession may be delayed until the death of a child of A who is not yet born)?
D. What is the condition of vesting for the children’s Vested Remainder Subject to Open?
E. Who is the most appropriate measuring life for such condition?
F. Is the interest sure to vest or not vest within 21 years (plus a gestation period) of the death of the measuring life?
G. What result?
H. USRAP result?
A- A has a Life Estate, A’s children have a Vested Remainder Subject to Open in a Life Estate, and B has an Indefeasibly Vested Remainder in Fee Simple
B- Yes, the children’s Vested Remainder Subject to Open
C- Because B has an Indefeasibly Vested Remainder, which is exempt from RAP
D- Closing the class
E- A (because A’s children are an open class)
F- Yes. All of A’s children will be known at his death, thus closing the class; at A’s death, his children will have possessory life estates
G- A has a Life Estate, A’s children have a Vested Remainder Subject to Open in a Life Estate, and B has an Indefeasibly Vested Remainder in Fee Simple
H- Same as common law
O transfers Blackacre “to the Red Cross for so long as Blackacre is used for charitable purposes, then to the Salvation Army.”
Result?
The Red Cross has a FSSEL and the Salvation Army has a valid Shifting Executory Interest.
Rule:
Charity-to-Charity
Exception: A conveyance to one charity followed immediately by a gift over to another charity upon a possibly remote event is valid as an exception to common law RAP.
USRAP result?
Same as common law
