(13) Rule Against Perpetuities

What is the Rule Against Perpetuities (RAP)?

No interest is valid unless it must vest, or fail to vest, if at all, within 21 years after some life in being at the creation of the interest.

What is the primary purpose of the Rule Against Perpetuities?

To prohibit remote vesting and unreasonable restraints on alienation.

What type of vesting does RAP prohibit?

Remote vesting.

What is the first step in analyzing a RAP question?

State the Rule Against Perpetuities and explain its purpose.

What is the second step in analyzing a RAP question?

Apply the rule to determine whether the interest must vest or fail within the perpetuities period.

What is the perpetuities period?

A life in being plus 21 years.

What is a life in being?

Any person alive at the time the future interest is created.

Who may serve as the measuring life under RAP?

Any person living when the interest is created whose life determines whether the interest must vest or fail within the perpetuities period.

Why is choosing the correct measuring life important?

Because it determines whether the future interest is valid under RAP.

When does the perpetuities period begin for a devise by will?

At the grantor's death.

When does the perpetuities period begin for an inter vivos conveyance?

Upon delivery of the conveyance.

When does the perpetuities period begin if an inter vivos conveyance is revocable?

When the conveyance becomes irrevocable.

What does "vest or fail" mean under RAP?

At the time the interest is created, it must be certain that the interest will either vest or permanently fail within the perpetuities period.

Will an interest satisfy RAP if there is any possibility that it could vest outside the perpetuities period?

No.

How remote may the possibility of late vesting be before RAP invalidates the interest?

Any possibility, no matter how remote, violates RAP.

What is the effect of violating the Rule Against Perpetuities?

The future interest is void from the beginning.

If a condition is attached to a living person, is RAP likely violated?

Generally no.

If a condition is attached to an inanimate object or event, is RAP likely violated?

Generally yes.

To which future interests does RAP apply?

Contingent remainders, executory interests, and class gifts.

Does RAP apply to vested interests?

No.

Does RAP apply to possibilities of reverter?

No.

Does RAP apply to rights of entry?

No.

Does RAP apply to transfers from one charity to another charity?

No.

What three categories of future interests are subject to RAP?

Contingent remainders, executory interests, and class gifts.

What three interests are exempt from RAP?

Vested interests, possibilities of reverter and rights of entry, and charity-to-charity gifts.

What is the Fertile Octogenarian Rule?

The law conclusively presumes that any person, regardless of age or sex, can have additional children.

Why does the Fertile Octogenarian Rule exist?

Because RAP uses legal possibilities rather than biological probabilities.

Example: "To C for life, then to C's children for life, then to C's grandchildren," where C is 90 years old. Why is the gift to the grandchildren void?

Because C is conclusively presumed capable of having more children, delaying the closing of the class beyond the perpetuities period.

What is the Unborn Widow Rule?

The law assumes a person's future spouse may not yet be born when the interest is created.

Why can the Unborn Widow Rule violate RAP?

Because the unborn spouse cannot serve as a measuring life.

Example: "To B for life, then to B's widow, then to B's surviving children." Why is the remainder to B's children void?

B may later marry someone not alive when the interest was created, delaying vesting beyond the perpetuities period.

Why can't the unborn widow serve as the measuring life?

Because she was not a life in being when the interest was created.

What is the Wait-and-See Doctrine?

A doctrine under which courts wait to see whether the interest actually vests or fails within the perpetuities period before declaring it invalid.

How does the Wait-and-See Doctrine differ from the common-law RAP?

It uses hindsight rather than possibilities existing at the time the interest was created.

Under the Wait-and-See Doctrine, can an interest be valid even if it initially appeared to violate RAP?

Yes, if it actually vests or fails within the perpetuities period.

Why have many states adopted the Wait-and-See Doctrine?

To avoid invalidating interests based solely on unlikely hypothetical possibilities.

Testable Issue: What is the Rule Against Perpetuities?

No interest is valid unless it must vest or fail, if at all, within 21 years after a life in being at the creation of the interest.

Testable Issue: What interests are subject to RAP?

Contingent remainders, executory interests, and class gifts.

Testable Issue: What interests are exempt from RAP?

Vested interests, possibilities of reverter, rights of entry, and charity-to-charity transfers.

Testable Issue: What happens if there is any possibility that an interest may vest outside the perpetuities period?

The interest is void.

Testable Issue: What is the Fertile Octogenarian Rule?

Every person is conclusively presumed capable of having children regardless of age.

Testable Issue: What is the Unborn Widow Rule?

A future spouse not alive when the interest was created cannot serve as the measuring life.

Testable Issue: What is the Wait-and-See Doctrine?

A doctrine validating interests that actually vest or fail within the perpetuities period despite possible violations at creation.

Essay Rule: How should you analyze a Rule Against Perpetuities problem?

State the rule and its purpose, identify the future interest, determine whether RAP applies, select an appropriate measuring life, determine whether the interest must vest or fail within a life in being plus 21 years, and conclude whether the interest is valid or void.

Master Synthesis: What is the overall purpose of the Rule Against Perpetuities?

RAP prevents property from being tied up indefinitely by invalidating contingent future interests that might not vest within a life in being plus 21 years, thereby promoting the free alienability of property.