Rule Against Perpetuities (RAP)

Question 1

Rule Against Perpetuities (RAP)

Answer 1

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

Question 2

4 step technique for assessing potential RAP problems

Answer 2

1. Determine which future interests have been created by the conveyance
2. Identify the conditions precedent to the vesting of the suspect future interest
3. Find a measuring life
4. Ask if we will know w/certainty w/in 21 years of the death of our measuring life if our future interest holder can or cannot take.

Question 3

4 step technique for assessing potential RAP problems

1. Determine which future interests have been created by the conveyance

Answer 3

The RAP potentially applies ONLY to contingent remainders, executory interests, and certain vested remainders subject to open.
RAP does NOT apply to:
1. any future interest in O (grantor) (possibility of reverter, right of entry, reversion) OR
2. indefeasibly vested remainder, OR
3. vested remainders subject to complete defeasance

Question 4

4 step technique for assessing potential RAP problems

2. Identify the conditions precedent to the vesting of the suspect future interest

Answer 4

Find out what has to happen before a future interest holder can take.

Question 5

4 step technique for assessing potential RAP problems

3. Find a measuring life

Answer 5

Look for a person alive at the date of the conveyance and ask whether that person’s life or death is relevant to the condition’s occurrence.

Question 6

4 step technique for assessing potential RAP problem
4. Ask if we will know w/certainty w/in 21 years of the death of our measuring life if our future interest holder can or cannot take.

Answer 6

If so, the conveyance is good.
If there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of a measuring life, the future interest is void.
Remember: Heirs can die (A living person has no heirs)
Fertile Octagenarian

Question 7

4 step technique for assessing potential RAP problem
4. Ask if we will know w/certainty w/in 21 years of the death of our measuring life if our future interest holder can or cannot take.
Fertile Octagenarian rule

Answer 7

Presumes that a person is fertile regardless of age.

Question 8

2 bright line rules on common law RAP

bar specific

Answer 8

1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP
2. Many shifting executory interests violate the RAP. An executory interest w/no limit on the time w/in which it must vest violates RAP.

Question 9

2 bright line rules on common law RAP
(bar specific)
A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP

Answer 9

Bad as to one, bad as to all.
To be valid, it must be shown that the condition precedent to every class member's taking will occur w/in the perpetuities period.  If it is possible that a disposition might vest too remotely w/respect to any member of the class, the entire class gift is void.

Question 10

2 bright line rules on common law RAP
(bar specific)
Many shifting executory interests violate the RAP. An executory interest w/no limit on the time w/in which it must vest violates RAP.
charity to charity exception

Answer 10

A gift from one charity to another NEVER violates RAP.

Policy: encourage people to be charitable

Question 11

Reform of the RAP

Answer 11

1. “Wait and see” or “second look” doctrine
2. Uniform Statutory RAP (USRAP)
3. Both the “wait and see” and USRAP embrace 1) cy pres doctrine and 2) the reduction of any offensive age contingency to 21 years

Question 12

Reform of the RAP

“Wait and see” or “second look” doctrine

Answer 12

Under this majority reform effort, the validity of any suspect future interest in determined on the basis of the facts as they now exist, at the end of the measuring life.
This eliminates the “what if” or “anything is possible” line of inquiry.

Question 13

Reform of the RAP

USRAP

Answer 13

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

Question 14

Reform of the RAP

“wait and see” and USRAP

Answer 14

Both the “wait and see” and USRAP embrace 1) cy pres doctrine and 2) the reduction of any offensive age contingency to 21 years
cy pres - As near as possible
If a given disposition violates RAP, a court may reform it in a way that most closely matches grantor’s intent while complying w/RAP