- The Rule: 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.
- Determine which future interests have been created by the conveyance. RAP potentially applies to ONLY:
Executory interests, and
Certain vested remainders subject to open
RAP does not apply to:
Any future interest in O, the grantor, thus it will NOT apply to indefeasibly vested remainders, nor vested remainders subject to complete defeasance.
- Identify the conditions precedent to the vesting of the suspect future interest.
- Find a measuring life. 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 occurance.
- Ask—will we know with certainty, within 21 years of the death of our measuring life, if our future interest holders can or cannot take? If so, the conveyance is good. If not (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.
EX: “To A for life, then the first of her children to reach age of 30.” A is 70. Her only child, B, is 29 years old.
Classify the future interest. = Contingent remainder
What are the conditions precedent to the vesting of the future interest? = A must die and she must have a child to reach 30.
Measuring life. = A (B is not the measuring life because they conveyance to A’s children is not B specific)
Will we know with certainty, within 21 years of the death of our measuring life, if a future interest holder can take? NO. B, who is 29 could die tomorrow. Thereafter A could have another child, no matter that A is 70.
Thus, A = life estate; B=reversion.
Two bright Line Rules of Common Law RAP
A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates that common law RAP.
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 within the perpetuities period. If it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class gift is void.
“To A for life, then to such of A’s children as live to attain the age of 30. A has two children, B and C. B is 35 and C is 40. A is alive. This class is still open. B and C’s vested remainders subject to open are voided by the common law RAP – and the bad as to one, bad as to all rule.
Thus, under common law RAP, we are left with a life estate in A and a reversion in O.
Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.
“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 and his heirs.”
Classify interest = B has a shifting executory interest
Conditions that trigger B’s entitlement = The land must cease to be used for farm purposes
Measuring life = A
Will we know with certainty, within 21 years of the death of our measuring life if a future interest holder can take?
NO = A might abide by the condition during her lifetime. The condition may not be breached, if ever until hundreds of years have passed.
We strike the offensive future interest: So, “To A and his heirs so long as the land is used for farm purposes.”
A = fee simple determinable
O = possibility of reverter
RAP Problem? No because RAP does not apply to future interests in O the grantor.
There’s a charity to charity exception for RAP. A gift from 1 charity to another does not violate the RAP.
Wait and See (second look) doctrine – under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist at the conclusion of our measuring life.
Eliminates “what if” or “anything is possible” line of inquiry.
Uniform Statutory Rule Against Perpetuities (USRAP): Codifies the common law RAP and, in addition, provides for: an alternative 90 year vesting period.
Both “wait and see” and USRAP embrace:
“cy pres” - as near as possible. If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor’s intent while still complying with the RAP.The reduction of any offensive age contingency to 21 years