RAP

Question 0

Rule def

Answer 0

Rule: “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.”

Question 1

Rule purposse

Answer 1

Purpose: To free up land from the dead hand requirement. Grants are limited to about two generations

Question 2

1. DOES THE RAP APPLY?

Answer 2

Applies only to:
Executory interests,
Vested remainders subject to open, and
Contingent remainders.

Question 3

RAP doesnt apply to…

Answer 3

Does not apply to: reversions, possibility of reverter, power of termination/right of entry.

Question 4

2.WHO ARE THE VALIDATING LIVES?

Life in being:

Answer 4

Someone who is alive at the time the interest was created.

A life in being is someone named in the conveyance (or their heirs).

Question 5

2.WHO ARE THE LIVES IN BEING: will v. Grant

Answer 5

If it is a contract/grant, the interest is created at the time of the grant.
If it is a will, the interest is created at the time of death.

Question 6

3.KILL OFF THE LIVES IN BEING

WHAT IS THE FIRST POINT AT WHICH THE FUTURE INTEREST MUST VEST?

Answer 6

Interest must vest when the person entitled to possession under the future interest are ascertained AND
There is no other condition that must be met before the interest can become possessory.

Question 7

4.WILL THE INTEREST VEST WITHIN 21 YEARS? or WILL IT NEVER VEST?

Answer 7

If the interest must vest within 21 years OR will definitely never vest, RAP is not violated.
NOTE: Courts do not care whether it is highly unlikely or even scientifically impossible for an event, such as the birth of another child, to occur. Ex: Jee v. Audley (75 y.o. woman, for the purposes of the RAP, still has the potential to have another child).

Question 8

5. COMMON LAW OR STATUTE?

Answer 8

If common law, if a clause is found invalid, it is struck from the grant.
If statute, most take the “wait and see” approach to a RAP violation.
This means that the state waits to see if the RAP is violated.
If RAP is not violated, even if it could have been, then the grant is valid.
Problem with this approach is that grantees have to wait a long time to ascertain the validity of their interests.

Question 9

G grants FSA “to A for life, then to A’s children for life, and upon the death of the last survivor, to A’s surviving grandchildren.” A currently has C1 and C2 children.
GRANT TO A’s CHILDREN…

Answer 9

Type: Vested remainder subject to open because A could have more children. RAP Applies.
Validating lives: A, C1 and C2.
Future interest must vest upon A’s death, because A cannot have any more children and the identities of all the children will be known.
Therefore, this interest is valid, because the time of vesting is well within the death of A (life in being).

Question 10

G grants FSA “to A for life, then to A’s children for life, and upon the death of the last survivor, to A’s surviving grandchildren.” A currently has C1 and C2 children.
TO A’S GRANDCHILDREN

Answer 10

Grant to A’s grandchildren:
Type: Contingent remainder because the identity of grandchildren are unknown. RAP applies.
Validating lives: Same as above.
If A, C1 and C2 died, but A had had another child (C3) after the time of the grant and C3 lived for more than 21 years, the condition would be violated because the A’s grandchildren’s interest would not vest until more than 21 years after the death of the lives in being.
Therefore, this interest is invalid.

Question 11

“To A for life, then to A’s children for life, then to B.”

Answer 11

VALID: B’s remainder is vested on creation.

Question 12

“To A for life, then to A’s children for life, then to A’s grandchildren.”

Answer 12

INVALID:A may have a child after the interest is crated and so may have grandchildren beyond the perpetuities period.

Question 13

“To B for life, remainder to those of B’s siblings who reach age 21.”

Answer 13

VALID: B’s parents can be used as measuring lives.

Question 14

“To B for life, then to such of B’s children who become lawyers.”

Answer 14

INVALID:B may have a child born after the disposition who becomes a lawyer more than 21 years after B’s death.

Question 15

“To A for life, then to his wife W for life, then to A’s surviving children.”

Answer 15

VALID; No unborn widow problem because to W, a life in being.

Question 16

“To A for life, then to his widow (NOT NAMED) for life, then to A’s surviving children.”

Answer 16

INVALID:Unborn widow problem - A’s wife might die, might remarry someone not yet born, thus not life in being.

Question 17

“To X for life, then to Y, but if at her death, Y is not survived by children, then to Z.”

Answer 17

VALID: Y is the measuring life.

Question 18

“To M for life, then to M’s children for their lives, then to M’s grandchildren.” (M is 80 years old and has had a hysterectomy.)

Answer 18

INVALID(unless stature)

Fertile octogenerian problem

Question 19

White v. Brown

Answer 19

White v. Brown (Supp) (VT):
Will said: “I wish Evelyn White to have my home to live in and not to be sold.”
Ds claimed this was a LE grant (they were heirs). White (P) wanted FSA.
Court held that because there were no subsequent provisions dictating what should occur at the end of White’s life, it should be construed as a FSA.
Also held that the fact that “not to be sold” was a restraint on alienation did not overcome the presumption in favor of construction as a FSA.
Restraint on alienation is void for PP, so White can sell home if desired.
Shows that courts always prefer the construction to be FSA, not LE.
Example of the will of the testatrix being defeated in favor of efficiency.

Question 20

Disabling Restraint

(prohibition on alienation)

“To A, and A may not transfer the land”
FEE SIMPLE/LE/TENNACY void?

Answer 20

Void/ void/ valid in most statew

Question 21

Forfeiture Restraint

(attempted alienation is a condition that permits grantor to exercise power of termination or results in reversion)

“To A, but if A attempts to transfer land, title reverts to grantor”
FEE/LE/LEASHOLD

Answer 21

Void/valid/valid

Question 22

Promissory Restraint

(attempted alienation is a breach of covenant, so covenantor is liable for the breach)

“To A, and A promises not to transfer land”

Fee/le/leashold

Answer 22

Void/valid/valid

Question 23

Rap 4 steps

Answer 23

2. 4 Steps:
   a. Classify the future interests. REP only applies to: contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to a leasehold), rights of first refusal, and powers of appointment.
   b. What are the conditions precedent to the vesting of the future interest?
   c. Find a measuring life (anyone alive at time of transfer AND named in the transfer or inferred in transfer as being central to the conveyance).
   d. Will we know, with certainty, within 21 years of the death of the measuring life, if a future interest can take? Two possibilities
   i. Executory interest vest only when they become possessory
   ii. Contingent remainders vest when the contingency occurs, and they become certain to become possessory

Question 24

i. “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” →

Answer 24

violates RAP

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

Question 25

To the Red Cross, so long as the premisises are used for Red Cross purposes, and if they cease to so be used, then to the YMCA

Answer 25

Valid- charity to chairty exception

Question 26

The Uniform Statutory Rule Against Perpetuities

Answer 26

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

Question 27

Cy pres

Answer 27

court can reform invalid interest to make it valid.

Question 28

(1a) O conveys to A and his heirs for so long as alcohol is not sold on the premises; but if alcohol is sold on the premises, then to B and his heirs.

Answer 28

In the absence of the RAP, we’d have: O: nada
A: fee simple subject to an executory interest
B: shifting executory interest
B’s interest is subject to the RAP. And it violates the RAP — that is, there’s no person alive on the planet at the time of the conveyance about whom it can be said with utter certainty that B’s interest will vest (or ultimately fail to vest) not more than 21 years after that person dies.
Umm… like alcohol might be sold on the premises 1,000 years after the conveyance — many centuries after all lives in being at the time of the conveyance have been extinguished (except for Walt Disney and Ted Williams, who are taking long, cryogenically-assisted naps — I kid).
Thus, after applying the RAP (and striking out the grant to B), we’re left with the following interests:
O: possibility of reverter
A: fee simple determinable
B: nada

Question 29

O conveys to A for life, then to the last of A’s children to attain the age of 21.

Answer 29

O: reversion [in fsa/fs subj. to an exec. int.*]
A: life estate
Last of A’s kids to attain 21: contingent remainder
The future interest held by the last of A’s kids to attain 21 is subject to the RAP. A is a valid measuring life, because any child of A who attains age 21 will do so no later than 21 years after A kicks the bucket. Even if A dies of a heart attack in the very act of conceiving his last kid, that child will (or won’t) make it to age 21 within 21 years of A’s (ecstatic) death. (Recall that gestation periods are ignored in reckoning time under the RAP. It’s as if A’s death coincides with the very instant of the child’s birth; obviously, this is a legal fiction, since, as a biological reality, a baby may indeed be born months after his father has died.)
Note that A is the only valid measuring life in this case. It’s not that I have anything against anybody else. It’s just that no one else happens to work here. Many students seem to believe that the search for the measuring life is limited to people named in the grant. This is not true (see, e.g., (4) below). Any dude (or chick) alive on the planet at the time the interest is created is eligible for consideration. In most cases, however, Ted Koppel winds up not working (not because his hair doesn’t try).
*Note: Whether O’s reversion would be in fee simple absolute (“fsa”) or in fee simple subject to an executory interest (“fs subj. to an exec. int.”) depends on whether the jurisdiction adheres to the (old-school) Destructability Doctrine or instead opts to “save” the remainder by transforming it into a springing executory interest. Now you’ll know what “fsa/fs subj. to an exec. int.” means throughout this document.

Question 30

O conveys to A for life, then to the last of A’s children to attain the age of 22.

Answer 30

In the absence of the RAP, we’d have:
O: reversion [in fsa/fs subj. to an exec. int.]
A: life estate
Last of A’s kids to attain 22: contingent remainder
The future interest held by the last of A’s kids to attain 22 is subject to the RAP. It is void. There is no one who can “save” it.
Even A can’t get the job done here. If A dies in the act of conceiving his last child, we may have to wait 22 years more to get the answer to our question. Na!
Rule Against Perpetuities Exercises — Explained [http://pub.testguru.com/rap-exercises-explained.pdf ]
Thus, after applying the RAP, we are left with the following interests:
O: reversion in fsa
A: life estate
Last of A’s kids to attain 22: nada

Question 31

O devises to A for life, then to the last of O’s children to attain the age of 21.

Answer 31

O: nada (if the latest-born of O’s children is 21 or older); otherwise, reversion [in fsa/fs subj. to an exec. int.]
A: life estate
Last of O’s kids to attain 21: vested remainder in fsa (if
the latest-born of O’s children has already attained 21 — since, in that case, this person is ascertained at the moment of O’s death); otherwise, contingent remainder
Note: “O devises” means that O is dead, an extremely salient point!
The contingent remainder would be subject to the RAP. It is valid. Measuring lives are in abundance here! Ted Koppel will work. Magic Johnson will work. Even your neighbor will work. As will 6 billion-ish other humans walking around the planet at the time of O’s death. Think about it: Any child of O will be born at or before O’s death (recall that gestation is ignored). That means that any child of O who makes it to 21 will do so no more than 21 years after O’s death — that is, after “right now.” So any person who’s alive “right now” will work.
Please note that one person who will not work is O, since he is dead. (George Washington, Louis Armstrong, and Mahatma Gandhi will also not work, for the same reason.)

Question 32

When the per period begins to run?

Answer 32

1. Wills-date of testators death
2. Revocable trusts -date trust becomes irrevocable
3. Irrevocable trust - dateits created
4. Deed-date deed is delivered

Question 33

To A for life; then to B; but if at B’s death she is not survived by children, in thatevent to C”

Answer 33

A has a present possesory life estate; B has a vested remainder subject to total divestment in fee simple. C has a shifting executory interest in fee simple
C’s interest is valid under the rule. B is the relevant life that can be used to show that C’s interest will vest within the perpetuities period
○ If B dies in As lifetime w.o. kids, Cs interest will become indefeasbilty vested remainder
○ If B survives A and thereafter dies w.o. children. C’s executory interest will become a present possesory estate

Question 34

To A for life, and on her death to such children as attain the age of 35” A is 60 with 2 kids: age 30 and 25

Answer 34

As two kids might die before 35 AND A dies before afterborn child reaches 14 (35­21=14) → woulnd vest too remotely → invalid bc might occur

Question 35

ToA for life,and on As deathtoBifBisthenliving

Answer 35

A has a LE; B has a contingent remainder; transferor has a
reversion
ii. Valid ­ we will know if B’s interest vests at death of A(validating
life) (B will either be dead or alive)

Question 36

To A in fee, but on the express condition that if marijuana is ever smoked
on the premises during Bs lifetime or within 21 years after Bs death, then and in that even to B in fee.

Answer 36

i. A has a fee simple subject to an executory interest ii. B has an executoryu interest in fee simple
iii. B;s interest will vest or fail during As lifetime + 21 years → valid

Question 37

If the contingent intrests is created by will, measuring life must be

Answer 37

Person alive at the testators death

Question 38

If the contingent intrests is created by irrevocable inter vivos transfer, measuring life must be

Answer 38

Person alive at the transfer

Question 39

O transfers a sum “in trust to A for life, then to As first child to reach 21.

Answer 39

VALID
A is the validating life
You can prove any child of A who reaches 21 will do so within 21 years of As death.
Thus remainder must vest or fail within this period

Question 40

O transfers a sum “ in trust for A for life, then to As first child to reach 25” A has no child age 25 or older.

Answer 40

INVALID
contingent remainder is void because you cannot prive that As first child to reach 25 will so ao within 21 years of As death.
- As presently living children under 25 die
-A has another child, B,
- A dies when B is 3..vests 22 years after As death.
Since the contingent remainder is void, stuck from the instrument, leaving A with LE; O with reversion

Question 41

Under the ________ test, intrest is invlaid

Answer 41

Wat-might -happen

Question 42

T devises a sum “in trust to A for life, then to As children for life of the survivor of them, then upon the death of the last survivor of A, to As grandchildren. At the time of Ts death, A is 80 woman w. 2 living kids B + C

Answer 42

The remainder to As grandchidren is invalid and struck.
Under the what might halpen test
After Ts, death, A might have a child(X) who in turn has a child (Y) conxieved and born more than 21 years after the death of the survivor (A,B, or C) fertile octogenarian

Question 43

All or nothing rule

Answer 43

A class gift, holds that if the gift to one member might vest too remotely, the whole class gift is void

Question 44

For a class gift to be vested under the rule. Must be

Answer 44

Closes- every member of the class must be in existence and identified, and all conditions precedent satusfied

Question 45

To A for life, then to As chidlren

A gphas one living child, B.

Answer 45

Bs remainder is vested subject to open, but it isnt vested for the rule of perp. Until A dies and All of As children are in existence and identified

Question 46

Rule of convience: cuts off the possibily of new entrants at 2 times, thus saving gift

Answer 46

(1) natural closing of the class, A dies or

(2) artificial closing throught the operation of the rule of convience

Question 47

T devises “to such of As children that reach 25” A has 2 children at Ts death : X(26) and Y(22).
Without rule of convicence.
With rule

Answer 47

W/o invalid. A might have another child Z, after which A, X, and Y die, making it vest 21+ years

W. bc X reached 25 by Ts death, class closes prematurely at Ts death. Ay child born (or adopted) after ts death isnt added.

Question 48

1 billion to OSU when it discovers a cure for cancer

Answer 48

springing executory interest. Is it valid under RoP → no, springing executory interest must vest or fail within lifein being + 21 years. Corperate life, not not natural, must satisfy the contingency within a 21
What if they discover it tommorow - no, void when created → created nothing.
policy., we dont want that money sitting around until whenever cure found. ties up property indefinitely
could make valid if you say within 21 yers in the lang.
or while dr. gee is president. would tie it to a life.

Question 49

What about some unlikely event ie world peace tied to a life? →

Answer 49

interest is good. (1 bil when world peace achived during B’s life → valid, because it would vest or fail within Bs life)

Question 50

O conveys “to A for life, then to B if B attainst the age of 30. B is now 2 years old.

Answer 50

-life estate in A
-Contingent remainder subject to condition precedent
reversion
-valid because only for one life, B, not for a period of minority of the next.
-B is the validating life. because we will know his age when he dies.

Question 51

. O conveys “to A for life, then to A’s children for their lives, then to B if B is then alive, and if B is not alive, to B’s heirs”

Answer 51

-Life estate in A
-contingent remainder for life in as children. because a has no children, takers unascertained. thus subject to RoP
-Alternative contingent remainder in fee simple to B subject to condition precedent. remainder because capable of becoming possessory.
-Alternative contingent remainder in Bs heirs - because a contingency built into the language of the gift.
reversion in fee simple in O.
-contingent remainder in A’s children?
—-A is the validating life, because all of children will be born at the end of As life (presumption) thus all of As children will be in being at the time of As death
—-valid because it becomes vested remainder.
Then to to B if B is then alive
B would be the validating life, we’ll know if it vest or fails at Bs death. If b is alive when all of As children are dead.
When B is dead → if a has no children alive - vests in B
if a has children alive, then vests in B’s heirs → thus b is the validating life.
when b dies it vests in B or Bs heirs.

Question 52

O declares that she holds in trust $1,000 for all members of her property class that are admitted to the bar.

Answer 52

-Springing executory interest. divest or cut short the checking account- for all members of class
not class gift, individual gift.  
-valid becaus e1 generation, we will know whether or or not they are admitted to the bar. 

As child → A could die and vest in child beyond 21 years.

Question 53

O conveys “to A for life, then to As children who reach 25” A has a child 26 at the time of the conveyence.

Answer 53

life estate in A
vested remainder subject to open (because already vested in 26 yr old) another child could reach 25 after A and 26 yer old die.
Class, 1 generation + beyond a period of minority of next (21) [plus 4 yers here=invalid]
Under the rule of convience - B is ready to claim the distribution, class closes. No such thing as an afterborn child of A, not legally entitled.
If there was another child 22, closing means any children alive now can participate, but any unborn children are excluded. (sub to ½ partial divestment by the shifting exec. interest. ) dont want Bs intrest to be defeasbile, not a good rule for society.
Class closes when A dies, then apply rule of convience (if in that jurisdiction)
Rule of conviuence will not save
When you have interests here
A’s life estate still active, so cannot vest
problem 4 again - interevening life estate precludes the rule of convience applying to this gift
- A would have to renouce the life estate ** which would be effective retroactively to the date of the conveyance itself. Then could save the gift under the rule of convience. Now there is a beneficiary who can demand immediate distribution.
- if you renounce the life estate → retroactive to the time of the conveyance [means never created] → class gift.

-if you said to As children who are currently alive- another way of saying class is closed. each person then is their own validatiing life.

Question 54

O conveys “ to A for life, then to As widow, if any, for life, then to As issue then living. “ is the gift to issue valid?

Answer 54

..contingent remainder for life in As widow → valid; upon A’s death we will know if there is a surviving spouse [validating life in A]
Contingency: As issue must survive As widow
..contignent remainder in As issue (subject to conditon precedent…then living) not valid in issue [as widow may not be A’s wife] may marry someone unborn[although unlikely] thus widow could possibly not be part of the present generation – 1 generation = ppl who are alive. [ like fertile octigarian
Alternative contingent remainders only when you have two: one vests one fails.

Question 55

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to B if A dies childless.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 55

a) contingent remainder B if A dies childless - good because A is the validating life. At As death we will know if he dies with Children or without. – good in 1 generation because it vests or fails at the death of A.
- B does not have to be alive for it to vest, if B dies would descend to Bs heirs upon the death of A. UNLESS there is a surviorship contingency in gift, you dont imply it. Revesion in Ts heirs.

Question 56

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to B if A has no grandchildren then living.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 56

b) B if A has no grandchildren then living. → another contingent remainder bc sub to condition precedent(. Once again B cannot be the validating life, because B does not have to be alive for it to vest
- not valid, A could have an afterborn child, who has an afterborn grandchild – live for more than 21 years after the lives in being at the time of the will;
Scenarios where there is an afterborn child of an afterborn child → will probably fail.

Question 57

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to Bs children.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 57

c) B’s children - class must close within the period of the rule. Continghent remainder because the takers are unascertained. B is the validating life because all the children are born at the time of B’s death → interest in every member of the class is vested at the time of bs death – this is good in 1 generation because B is still alive

Question 58

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to Bs children then living.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 58

d) B’s children then living – is this valid? →
Have to be born and be alive at the death of As last surivivng child.
scenario for remote vesting usually involves an afterborn. Scenario is A has an afterborn child, B has an afterborn child. everyone at the time of conveyence dies, the afterborns survive 21 years after the conveyance (cannot be used as validating lives

Question 59

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to As grandchildren.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 59

e) A’s grandchildren - contingenct remainder – Afterborn child of an afterborn child - and everyone alive at the time of the conveyance die. Remote, 3 generations.

Question 60

2 steps to solving class problems

Answer 60

1. When will all class members be ascertained (within livings in being plus 21)?
2. Then when all conditions precedent, if any, will be met for all member sof the class(within livings in being plus 21)?

Question 61

Future intrests in the _______(_____, ______, and _____) are not subject to RoP

Answer 61

Transferor - reversions, possibiltiys of reverter, and rihts of entry

Tey are treated as vested as soon as the arise

Question 62

O conveys blackacre “To school so long as it is used for a school”

Answer 62

School board has fee simple determinable

o has possibilty of reverter excempt from RoP

Question 63

O conveys Blackacre” to school board, but if it ceases to use blackacre for school purposes, O has right to reenter”

Answer 63

School bard has fee simple subjec to condition subsequent;

O has right of entry excempt from RoP

Question 64

O conveys Blackacre “ to the school board so long as its used for a school, then to A and her heirs”

Answer 64

As executory intrest violates RoP.
It will not necessarily vest within AS life or 21 yrs after his death

Cross out invalid gift.
Left with FSD, o has possibiliy of reverter

Question 65

Option to purchase

Answer 65

Creates an future intrest in property, contigent upon the escersise of the option, and is subject to RoP

Question 66

Unlike an option to purchase, a right of first refusal…

Answer 66

Does not compell the owner to sell, rather, if and when owner wants to sell, must sell to them first
Most courts say not subj to RoP
Some do thoug

Question 67

Perp reform (4)

Answer 67

1. Actual unterests at the end if the life estate
2. Repair technicalities w. spec. Statutes(ie over 65 no kids)
3. Cy pres-Immediate reformation(fix a disposition to avoid and carry out intent
4. Wait and see (most juris)
5. USRAP-90 year vesting prriod rather than measuring life
   - critics, most intrests vest or fail within90 yrs

Question 68

Wait and see aproach(most juris)

Answer 68

Rather than a whatmighthappen, whether a contingent intrest actually vests within thr permissible vesting period

Question 69

Virtual/perpetual trust

Answer 69

Allow permitted trusts to last forever if the trustee has the power to sell the trust assets..abolished RoP

Question 70

The federal estate tax

Answer 70

Levies a tax on any prop intrest transfered by will, intestacy, or surviorship, except for transfers to spouses and charities

Question 71

How can the federal estate tax be avoided

Answer 71

By creating trusts with sucessive LEs. GST enacted to stop

Question 72

Catagories of jurisdictions

Answer 72

1. Pure rule common law

2. A

Question 73

If trust is under 3.5 mil, or 7 for couples

Answer 73

No GST due at termination of the. Le

Question 74

Trusts under 7 mil in states that abolished RoP(SD)

Answer 74

Potential to avoid skipping Gst or estate tax forever

Question 75

Rise perptual trust due to

Answer 75

1. Need to keep wealth in fam.

2. Most wealth in personal prop today, not in real prop

Question 76

A vested remainder for life can be followed

Answer 76

By contingent remainder

Question 77

T devises property “ to A for life, and on As death to As children for their lives, and upon the death of A and As children, to Ts grandchildren.”
A and B surive T. a has 1 child, X, who also surivives T.

Answer 77

T is dead. Ts children, if any, are validating lives bc all of his children will be alive at his death. If has children, good, bc all grandchildren will be born within 21 yrs of validating life

Question 78

RoP steps

Answer 78

Id interests
List contingency
List lives in being
Do scenario for remote vesting