3. The Rule Against Perpetuities

Question 1

Four-Step Technique for Assessing Potential RAP Problems:

Answer 1

1. Determine which future interests have been created by the conveyance.
2. Identify the conditions precedent to the vesting of the suspect future
   interest.
3. Find a measuring life.
4. Ask: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? If so, the conveyance is good.

Question 2

What does the RAP potentially apply to?

Answer 2

The RAP potentially applies only to contingent remainders, executory interests, and certain vested remainders subject to open.

Question 3

What is required for a gift to an open class to be valid?

Answer 3

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 with respect to any member of the class, the entire class gift is void.

Question 4

When does an executory inters violate the RAP?

Answer 4

An executory interest with no limit on the time within which it must vest violates the RAP.

Question 5

The charity-to-charity exception:

Answer 5

A gift from one charity to another does not violate the RAP.

Question 6

The “wait and see” or “second look” doctrine:

Answer 6

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 end of our measuring life.

Question 7

The Uniform Statutory Rule Against Perpetuities (USRAP):

Answer 7

Codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period

Question 8

The cy pres doctrine:

Answer 8

If a given disposition violates the rule, a court may reform it in a way that most closely matches Grantor’s intent while still complying with the RAP

Question 9

Does NY apply either the “wait and see” or cy res doctrine?

Answer 9

No. New York applies the common law rule against perpetuities, and has rejected “wait and see” and cy pres.

Question 10

Under the New York perpetuities reform statute, where an interest would be invalid because it is made to depend on any person’s having to attain an age in excess of 21 years:

Answer 10

The age contingency is reduced to 21 years

Question 11

Does NY follow the common law fertile octogenarian rule?

Answer 11

The common law fertile octogenarian principle is modified by the New York perpetuities reform statute. The New York statute presumes that a woman over the age of 55 cannot have a child. The possibility that the person may have a child by adoption is
disregarded.