Pg 13 Flashcards
For the third question to ask on an RAP essay regarding whether or not the interest has vested, why do we ask that?
If the interest is vested, RAP does not apply. If it is contingent, then you carry-on with the rest of the essay approach. Contingent means it isn’t certain that it will either vest or fail, and that makes it void
For the fourth step of an essay approach to RAP regarding the triggering event, what do we do?
This asks what event triggers the vesting of the contingent future interest. It requires that you isolate the event
For the last step in an RAP essay approach about whether the triggering event happens within the perpetuity period, what do you do?
Ask if there’s a measuring life to provide a guarantee of vesting or not vesting within that person’s life +21 years. Ask if it is possible that more than 21 years after anyone currently alive is dead, that the future interest could kick in
Walk-through this example to do the RAP essay approach:
O owned land in FSA and grants to A for life, then on condition that B has reached 18, to B and his heirs
Step one: classify the interests
– A: present possessory life estate subject to complete defeasance
– B: contingent remainder FSA
– O: reversion in fee simple
Step two: what are the future interests?
– B has a contingent remainder
Step three: what event triggers vesting?
– B reaching 18
Step four: must that event happen within the perpetuities period, if at all?
– It either will or will not happen by the end of B’s life, so RAP is applicable but not violated, and B’s contingent remainder is not void
What are the elements involved in RAP?
– Identifying the measuring life
– the meaning of vesting
– 21 years
– moment of creation
How do you identify the measuring life for an RAP issue?
Find someone that has been expressly or impliedly named in the grant. Any life in existence at creation of the interest that for a certainty the interest will vest within 21 years after the end of that life
What must happen to start the clock in an RAP issue?
Someone must die who was alive at creation. When he dies, the 21 year clock begins
If “O grants to B, but if alcohol is sold during his life, then to C” - what are the interests there?
– B: has a fee simple subject to a condition subsequent
– C: has an executory interest subject to RAP, but it doesn’t violate it because it will vest with B’s life and B is a life in being since he was alive when the grant was made
How to deal with an RAP issue that involves grandkids on an essay? Categorize these interests:
A devises land to B for life, then to B’s kids for their lives, then to B’s grandkids that are alive at the death of the survivor of all of B’s kids. B is alive at transfer and has some kids, but no grandkids
– B’s kids: have vested remainders for life subject to open. On B’s death they become absolutely vested remainders for life and are measured by B — all of their interest will vest within 21 years of B dying
– B’s grandkids: have contingent remainders that violate RAP because there’s no way to act as a measuring life, since no one is alive at the time the interests were created.
B may have more kids after A dies and they may survive B and all of his existing kids, so the gift to the grandkids won’t for sure vest in the perpetuities period.
BUT if B were already dead when A died, the interests of the grandkids would be good because B wouldn’t be able to have more kids, so all present kids would be measuring lives and the grandkids’ interests would vest at the death of the last survivor of B’s kids.
ALSO if B died without kids, the remainder to the kids or grandkids would not be effective and the land would return to A’s estate and be distributed under the residuary clause of his will or by intestacy, and RAP doesn’t apply to reversionary interests, so that would not be a problem
What is the rule for RAP with regard to measuring lives that are in utero?
A life in being includes the life of someone conceived but not yet born, as long as the fetus is born alive
If an interest will vest within 21 years of creation, what does that mean for RAP?
That the interest is good, even if it is not related to a life in being.
If you grant property to someone 15 years from today, if they build a house, is that OK under RAP?
Yes because the interest will vest or fail within the 21 year period
What is the starting point for RAP?
The moment of creation. All potential measuring lives have that same jumping off point
What is the meaning of vest under RAP?
RAP is against future interests that stay unvested for too long, not against trusts or future interests that last too long. Reversions, power of termination, and possibilities of reverter are not subject to RAP because they vest upon creation.
– Executory interests: these vest when they become possessory or because they aren’t subject to a condition, they must become possessory the end of a precisely computable time
Determine whether these interests are vested:
A to B as long as the UN headquarters stays in New York, but if it moves, then to C
- C: his executory interest is not certain to vest within the perpetuities period, so it is void under RAP. It must be absolutely certain that the interest either will or will not vest, otherwise it is not good. If there’s ambiguity, that is bad. Within 21 years after the death of someone alive when the interest was created, the interest must definitely vest or fail
