Rule Against Perpetuities (RAP)

Question 1

What is the rule against perpetuities?

Answer 1

Certain future interests are void if there is any possibility that they will vest more than 21 years after the death of a measuring life

Question 2

What are the four steps for assessing potential RAP problems?

Answer 2

1. Classify the future interest
2. Identify the conditions precedent to the vesting of the suspect future interest
3. Find a measuring life (a person alive at time of conveyance who’s relevant to the condition’s occurrence)
4. 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 yes: conveyance is good. If not: RAP is violated)

Question 3

What future interests are subject to the RAP? (3)

Answer 3

1. Contingent remainders
2. Executory interests
3. Certain vested remainders subject to open

Question 4

What future interests are NOT subject to the RAP? (3)

Answer 4

1. Any future interest in grantor
2. Indefeasibly vested remainders
3. Vested remainders subject to complete defeasance

Question 5

What is a “measuring life”?

Answer 5

A specific, certain person relevant to the conveyance.

e.g., “To A for life, then to the first of her kids to reach age-30.” A is 70 and her only kid, B, is 29.

A is the measuring life, because the conveyance doesn’t name B specifically! B might not be A’s first kid to reach 30!

BUT, e.g., “To A for life, then to the first of her kids to reach 30.” A is 70 and her only kid, B, is 30.

A or B can be the measuring life.

Question 6

What are the two bright line rules for common law RAP?

Answer 6

1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the RAP (bad as to one, bad as to all)
2. Many shifting executory interests violate the RAP—if no limit on time to vest, it violates the RAP

Question 7

When a conveyance violates the RAP, how much is stricken?

Answer 7

The offending clause AND any additional language necessary to make the conveyance grammatically sound

Question 8

What is the charity to charity exception to the RAP?

Answer 8

Gifts from one charity to another do not violate the RAP

Question 9

What are the broadly adopted reformations to the common law RAP? (2)

Answer 9

1. The “wait and see” or “second look” doctrine
2. Uniform statutory rule against perpetuities (USRAP)

Question 10

What is the wait and see/second look doctrine?

Answer 10

The validity of suspect future interests is determined based of the facts as they exist at the end of the measuring life (eliminates the what-if parade of horribles)

Question 11

What is the USRAP?

Answer 11

Uniform Statutory Rule Against Perpetuities Codifies the common law RAP, AND Provides for alternative 90-year vesting period (no more measuring life)

Question 12

What doctrines are Wait and See and USRAP subject to? (2)

Answer 12

1. Cy pres doctrine
2. The reduction of any offensive age contingency to 21 years

Question 13

What is the cy pres doctrine as applied to the RAP?

Answer 13

A court may reform a conveyance in a way that most closely resembles the grantor’s intent, while complying with the RAP

Question 14

NY QUESTION

What is the NY Perpetuities law? How does this differ from other states?

Answer 14

NY uses common law RAP. It has rejected both “wait and see” AND Cy Pres (except for trusts and wills…)

Question 15

NY QUESTION

What happens in NY to offensive age contingencies?

Answer 15

Age contingencies reduced to 21

i.e., In NY, where an interest would be invalid because it depends on any person having to attain an age greater than 21, the age contingency is statutorily reduced to 21.

Question 16

What is the fertile octogenarian rule?

Answer 16

A person is presumed to be fertile no matter her age.

(See NY distinction)

Question 17

NY QUESTION

What is the NY rule for fertile octogenarians?

Answer 17

No woman over the age of 55 is considered fertile. Possibility of adoption is ignored.