Rules Against Perpetuities Flashcards
RaP
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.”
RaP Applies To:
executory interests, contingent remainders, and the weird vested remainders subject to open.
For a conveyance to be good under the common law RAP we must show:
that it will either definitely vest (we know who is getting what) or totally fail within the perpetuities period – lives in being + 21 years.
- Not enough that it’s possible for an interest to vest within lives in being + 21 years. It MUST vest (or fail) within that time.
- If there is any set of facts under which the interest might vest beyond the perpetuities period, the interest is void.
Validating Life Method
Steps:
(1) Look at the people in the conveyance
(2) Find a life in being that you can point to
(3) Do we know within 21 years of that person’s death whether or not the interest will be vested?
- This person, if found, is called the “validating life.” If you discover a validating life, there is NO VIOLATION of RAP.
Create/Kill/Count Method
Find just one example where the conveyance violates RAP.
Steps:
(1) Create someone born after the conveyance is made.
- They do not count as a life in being but are eligible to claim interest in some way
- EX: To A for life, then to A’s first child to reach 25 and his heirs. A has a child, X, after the conveyance.
(2) Kill everyone who was alive at the time of the conveyance.
(3) Count out 21 years and see if RAP is violated.
- EX: X will only be 21 once you complete steps 2 & 3. He could live to be 25, but this would be after the RAP time limit, so RAP is violated.
RAP reforms
Wait & See Method
Uniform Statutory RAP
Reformation
Perpituities First Aid
Elimination
Wait and See
Most common.
Under wait-and-see, the validity of a future interest is not determined at the moment of creation. We do not void uncertain interests because they might vest beyond the perpetuities period. Rather, we wait and see what actually happens.
Uniform Statutory RAP
The majority approach. In USRAP states, courts do not concern themselves with lives in being. The perpetuities period is set at a maximum of 90 years from the date of the conveyance. If an interest vests within the 90 years (or if it’s good under the common law rule) then it is allowed to stand.
Many states couple US RAP with Reformation.
Reformation
Statutes that allow courts to rewrite interests that violate RAP to conform as closely as possible with the transferor’s intent.
Giving a court the power to rewrite a conveyance that violates RAP.
PFA
If any interest purported to be created in this instrument or in any instrument exercising this power…etc.
A clause that says you think you got RAP right, but if you didn’t. here’s how you fix it:
