RAP

Question 1

RULE AGAINST PERPETUITIES

Answer 1

No INTEREST is good unless it must VEST, IF AT ALL, not later than 21 years after some LIFE IN BEING at the time the INTEREST WAS CREATED.

Question 2

Rule operative when?

Answer 2

At the time the interest is created

Question 3

Works as a rule of

Answer 3

logical proof

Question 4

If there is any possibility that interest might not vest in the perpetuities period then it is

Answer 4

VOID and will be crossed out from the conveyance.

Question 5

Even remote possibilities matter so consider…

Answer 5

fertile octogenarian, unborn widow, etc.

Question 6

INTERESTS Subject to RAP (3)

Answer 6

1. Contingent Remainder
2. Executory Interests
3. Class Gifts (including vested remainders subject to open and accompanying executory interests)

Question 7

What It Means to VEST for RAP?

Answer 7

all takers identified and no contingency to ultimate

possession other than the termination of prior estates

Question 8

RAP requires that interest must…

Answer 8

vest or be destroyed within perpetuities period.

Question 9

Requirement is “vest in interest” within perpetuities period – may not necessarily mean…

Answer 9

coming into possession within same time.

Question 10

When the INTEREST IS CREATED (2)

Answer 10

1. Devise in a Will: date of testator’s death

2. Inter Vivos Transfer: date transfer becomes irrevocable

Question 11

Lives in Being:

Answer 11

Persons alive or already dead at the time the interest is created
• NOTE: fetus in womb is considered “alive” for this purpose

Question 12

Likely Cast of Characters to Consider for Lives in Being (4)

Answer 12

1. Preceding life-tenant
2. Potential takers of contingent interests
3. Anyone affecting identity of takers
4. Anyone affecting condition precedent events

Question 13

Permissible PERPETUITIES PERIOD (2)

Answer 13

• Perpetuities Period: an interest is only valid if it must vest, if at all, within 21 years after the death of some life in being
• Validating Life: life in being with some connection to the vesting of the future interest that can be used to prove that vesting must happen, if at all, within 21 years after the end of that validating life

Question 14

RULE AGAINST PERPETUITIES PROCESS (C.L.A.T.C.K.C.)

Answer 14

(1) CLASSIFY the future interests: Does RAP apply?
(2) LIST lives in being: Who are potential validating lives?
(3) ANALYZE: What is required for interest at issue to vest or be destroyed for RAP purposes?
(4) TEST: Is there any possibility that the interest at issue will not vest or be destroyed within 21 years of a life in being?
(5) CREAT a potential after-born person who may affect vesting.
(6) KILL all the lives in being.
(7) COUNT 21 years from the death of the lives in being: Is there any possibility of vesting after this date? If so, interest is VOID

Question 15

O to A for life, then to A’s children.

The conveyance “to A’s children” is a…

Answer 15

Class gift

Question 16

If at the time of O’s conveyance O to A for life, then to A’s children A had one child named Z, the state of title would be?

Answer 16

A has an indefeasibly vested life estate.
Z has a vested remainder subject to open in fee simple.
A’s unborn children are said to have executory interests in fee simple

The entire class of “A’s children” is subject to the RAP, including both Z’s vested remainder subject to open and the other unborn children’s executory interests. NOTE this means that Z’s vested remainder subject to open is not vested for purposes of the RAP and still must be tested through the class gift vesting rules of the RAP. This is because of the class gift vesting rule of “all or nothing” or “bad for one, bad for all” discussed below.

Question 17

Class gift vesting under the RAP follows the “all-or-nothing” or the “bad for one, bad for all” rule. In order for a class gift to vest for purposes of the RAP, two things both have to occur:

Answer 17

1. The entire class must be closed (i.e., all members identified), and
2. All conditions precedent for each and every member of the class must be eliminated.

Note that these two things can happen somewhat independently. For example, a class might close, but other conditions to vesting might still remain for some or all of the members. In order to be vested for RAP, both requirements (class closing and elimination of each and every condition precedent) must be satisfied for each and every class member. If any contingency remains for any class member outside the perpetuities period, the entire gift to the entire class fails for everyone.

Question 18

Merger (3)

Answer 18

• Same Party
• Successive vested interests
• Not created simultaneously in single instrument

Question 19

Rule In Shelley’s Case (5)

Answer 19

• One instrument
• Freehold in transferee
• Subsequent (but not necessarily successive) vested or contingent remainder in same transferee’s heirs
• All equitable or all legal
• In land

Question 20

Doctrine of Worthier Title (4)

Answer 20

• Inter vivos conveyance
• Remainder in executory interest
• In transferor’s heirs
• Must be in land for historic rule of law: modern rule of construction apply to personal property

Question 21

Destructibility of Contingent Remainder (3)

Answer 21

• Preceding freehold estate
• Legal contingent remainder
• In land

Question 22

What is bad for any one member of the class is

Answer 22

Bad for all the members of the class per “all or nothing”

Question 23

2 things required for class gift to vest

Answer 23

1. Class is closed

2. Conditions precedent cleared for every member

Question 24

Class closing means

Answer 24

No more members can be added

Question 25

Class closes 2 ways

Answer 25

1. Naturally

2. Artificially

Question 26

Natural close is when….

Answer 26

Becomes impossible to add members to class e.g. A dies

Question 27

Artificial close is when…

Answer 27

when the first distribution can occur and does occur to at least one class member (note that this is called the Rule of Convenience, and it is a rule of construction so may technically be defeated by contrary intent)

Question 28

One Rule of Convenience Wrinkle/Special Exception:

Answer 28

–Where there is no destructibility of contingent remainders rule, and
–There are no class members eligible for a distribution at the time the first distribution would/could have occurred, then 
–The class does not close until it closes naturally (i.e., no Rule of Convenience applied).