The Rule Against Perpetuities Flashcards
The definition of the Rule Against Perpetuities (RAP).
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
Faction analogy for RAP
- Imagine centuries ago that two factions were at odds.
- One wanted freedom from restrictions imposed by dead persons.
- The other faction was the privileged landholders who wanted to keep control of land after their death.
- The mediator stepped in to settle a compromise.
- If the future interest could take affect,
- beyond the expiration of a relevant lifetime in being at the time of the grant’s creation plus 21 years, then:
- the future interest will be voided by the rule against perpetuities.
Step one for tackling RAP challenges
Determine which future interests have been created by your conveyance.
- The rule against perpetuities is potentially applicable only to:
- contingent remainders
- executory interests, and
- certain vested remainders subject to open.
- The rule simply does not apply to:
- Any future interest created in O, the grantor, i.e:
- the right of entry or the reversion.
- indefeasibly vested remainders
- vested remainders subject to complete defeasance
- Any future interest created in O, the grantor, i.e:
- For example, O conveys “To A for life, then to A’s children.” A is alive. She has no children. The as yet unborn children have a contingent remainder. We are, therefore, on rule against perpetuities alert. We proceed to step two.
Step two for tackling RAP challenges
Identify the conditions precedent to the vesting of the suspect future interest.
- Put plainly, what has to happen before a future interest holder can take? In the preceding example, A must die, leaving a child.
Step 3 for tackling RAP challenges
Find a Measuring Life.
- Look for a person alive at the date of the conveyance and ask whether that person’s life or death is relevant to the condition’s occurrence.
- In the preceding example, A qualifies as a relevant life. A’s life and death are wholly relevant in discerning whether and when the conditions will occur or not occur. A must have a child and A must die, in order for the future interest holder(s) to take.
Step four for tackling RAP challenges
Will we know with certainty, within 21 years of the death of our measuring life, if the future interest holder can take?
- If so, the conveyance is good. If not, if there is any possibility, however remote, that the condition precedent could or could not occur until more than 21 years after the death of the measuring life, the future interest is void.
The fertile octogenarian rule
- Presume that a person is fertile no matter his or her age.
- Example: O conveys, “To A for life, then to the first of her children to reach the age of 30.” A is 70 years old. Her only child, B, is 29 years old.
- B could still die and A could have another child.
- We do not know for sure today whether the condition precedent to any potential newborn’s taking—that child’s turning 30—is sure to be satisfied or not within 21 years of A’s death.
- Thus, the offensive future interest is stricken, and we are left with a life estate in A and a reversion in O.
The first bright-line RAP rule.
- A gift to an open class that is conditioned on the members surviving to an age beyond 21 will violate the common law RAP, because of the principle known as “bad as to one, bad as to all.”
- to be valid, it must be shown that the condition precedent to every class member’s taking will occur within the perpetuities period.
- If it is possible that a disposition might vest too remotely or too far into the future with respect to any member of the class, the entire class gift is void.
Example of the first bright line RAP rule
- O conveys “To A for life, then to such of A’s children as live to attain the age of 30.”
- A has two children, 42 B and C. B is 35 and C is 40.
- A is alive. Hence, this class is still open.
- Thus, this is an example of a gift to an open class, conditioned on the members surviving to an age beyond 21.
- B and C’s vested remainders subject to open are voided by the common law RAP and its bad as to one, bad as to all principle.
- A, our measuring life, could have another baby tomorrow and then die in labor.
- That potential newborn’s interest would not vest until more than 21 years after A’s death.
- Because this conveyance is bad as to that hypothetical infant, it is bad as to all.
- No matter that B and C have satisfied the requisite age contingency, their future interests are invalidated.
- Thus, under the common law RAP, we are left with a life estate in A and a reversion in O.
The second bright-line RAP rule
- Many shifting executory interests will violate the RAP.
- An executory interest with no limit on the time within which it must vest will violate the common law RAP.
Example of the second bright-line RAP rule
“To A and his heirs, so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs.”
- Step 1: B has a shifting executory interest.
- Step 2: The land must cease to be used for farm purposes in order for B to take.
- Step 3: A’s life is the one to be measure the 21-year rule. A has the power, while alive, to abide by the condition or to breach the condition.
- Step 4: A might abide by the condition during her lifetime. The condition may not be breached, if ever, until hundreds of years have passed. Thus, the future interest is void.
- Thus, we are left with “To A and his heirs, so long as the land is used for farm purposes.” A now has a fee simple determinable and O has the possibility of reverter.
The interest to which the RAP does not apply
It will not apply to future interests created in O, the grantor. It simply declines to assert itself against future interests capable of creation in O, the grantor.
Difference between “but if” and “so long as”
- But if: The entire conditional clause is stricken and we are left with “To A and his heirs.”
- So long as: Only the executioner’s interest is stricken.
RAP reforms: “Wait and See” or “Second Look” Doctrine
Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of our measuring life.
The Uniform Statutory Rule Against Perpetuities (USRAP)
Codifies the common law RAP and, in addition, provides for an alternative 90-year vesting period.
