Chapter 6: Rule Against Perpetuities Flashcards
Rule Against Perpetuities
-Does the devise to Abel’s children violate the Rule Against Perpetuities (RAP)?
-No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.
No Interest
-Does a devise, “To Abel’s children, all of them,” create a contingent interest that is subject to the RAP?
-Contingent remainders are remainders that have either unascertainable beneficiaries or are subject to a condition precedent. Vest remainders are remainders that have no unascertainable beneficiaries and are not subject to partial defeasance or open when more individuals can be added to the class gift, a gift given to a group and not a specifically named individual.
Must Vest, If at All
-Does the devise, “to Abel’s children, all of them… but they must graduate collect,” violate the RAP?
-A contingent interest violates the RAP if it is possible for the interest to vest more than 21 years after a life in being at creation of the interest. In determining whether the contingent interest can vest beyond the perpetuities period, we look at legal possibilities and not factual possibilities. (One of the possibilities is the conclusive presumption that everyone can procreate until death.
Amelioration: Construction
-Assuming that there was a violation of the RAP, could the court ameliorate the harsh effect of the RAP by construing the devise to Abel’s children in a manner so as to preclude violation of the rule?
-In construction, the court interprets the document in question in such a way as to avoid a RAP violation. In interpreting the document and ascertaining the testator’s intent, the court looks to intrinsic evidence (the will) and extrinsic (parol) evidence.
Amelioration: Cy Pres
-Assuming that the court finds a violation of the RAP and construction is not adopted, can cy pres be used to change the gift to Abel’s children so that ther is no violation of the RAP?
-In cy pres, assuming that there is a violation of the RAP, the court can ascertain what the testator’s general intent was and then, consistent with that intent, rewrite the will as nearly as possible to testator’s stated intent so that there is no violation of the RAP. In ascertaining testator’s intent, the court can look to intrinsic evidence (the will) and extrinsic (parol) evidence.
Amelioration: Common Law Wait and See
-Could the court wait and see to determine whether Abel actually had an afterborn and there was a violation of the RAP?
-Wait and See is a hindsight approach that looks to see not what might happen, but what in fact did happen. In determining what did happen, if the contingent interest actually vests or fails to vest during a perpetuities-like period based on someone’s life who could affect vesting, then the contingent interest is not stricken.
Amelioration: Uniform Statutory Rule Against Perpetuities (USRAP)
-Could the court adopt the approach of the USRAP to validate the gift?
-Under USRAP, if the contingent interest vests within the common law period of a flat 90-year period, there is no problem. But if the interest could vest beyond either, the court waits to see if there actually is a violation of the RAP (similar to wait and see, above); if it turns out that there is no violation, the gift is good. If it turns out that there is a violation, the court modifies the gift, cy pres.
Amelioration: Abolition
-Should the court simply abolish the RAP?
-In some jurisdictions, the RAP is simply abolished.
Rule Against Perpetuities (RAP)
-When Tess devised, “to my friend Charlene for her life, then to the children of Charlene who become licensed elementary school teacher,” did the devise to the children violate the RAP?
-No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
Interest
-Did Tess create a contingent remainder in the children of Charlene, even though she had two children, David and Ed, at the time Tess executed the will and at the time of Tess’s death?
-A contingent remainder is one that is given to an unascertainable person or is subject to a condition precedent.
Must Vest
-Does the interest to “the children of Charlene who become licensed elementary school teachers” violate the RAP?
-In determining whether a contingent interest violates the RAP, we look to legal possibilities (what might happen) and not factual probabilities and what did happen. One legal possibility is that a person is deemed always capable of procreating. Moreover, under the “all or nothing rule,” if the interest of one member of the group violates the RAP, the entire class gift is invalid.
Amelioration: Presumption
-Would a presumption that a woman 55 or over is incapable of procreating prevent a violation of the RAP?
-In some jurisdictions, a woman over the age of 55 is deemed incapable of procreating (and not adopting).
Amelioration: Construction
-Assuming a violation of the RAP, could the court construe the devise to Charlene’s children in a manner so as to preclude violation of the rule?
-In construction, the court interprets the document in question in such a way as to avoid a RAP violation. In interpreting the document and ascertaining the testator’s intent, the court looks to intrinsic evidence (the will) and extrinsic (parol) evidence.
Amelioration: Cy Pres
-Assuming that the court does not adopt construction, can cy pres be used to change the terms of the gift to Charlie’s children so that there is no violation of the RAP?
-In cy pres, assuming that there is a violation of the RAP, the court can ascertain what the testator’s general intent was and then, consistent with that intent, rewrite the will as nearly as possible to testator’s stated intent so that there is no violation of the RAP. In ascertaining testator’s intent, the court can look to intrinsic (the will) and extrinsic (parol) evidence.
Amelioration: Common Law Wait and See
-Assuming construction and cy pres cannot be used, can the court use the wait and see doctrine under the common law to prevent a violation of the RAP?
-Wait and see is a hindsight approach that looks, not what might happen, but what in fact did happen. In determining what did happen, if the contingent interest actually vests or fails to vest during a perpetuities-like period based on someone’s life who could affect vesting, then the contingent interest is not stricken.
