Rule Against Perpetuities question...

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Arturo
Posts: 32
Joined: Thu Dec 09, 2010 3:13 pm

Rule Against Perpetuities question...

Postby Arturo » Wed Apr 13, 2011 4:11 pm

Can some explain why in the first example (from wikipedia) the example says its impossible for T to have children after he dies but in the second example (from http://lawschool.mikeshecket.com/proper ... uities.htm ) we say Adam can have children after he dies? I'm kind of lost here, I get lost where in one example it says you can't have children when you die and the other says you can.. If someone could explain this that would be great..

Statement 1 + Explanation
Blackacre to my children for their lives, then to their children for their lives, then to their children their heirs and assigns.

What the lawyer has created is a life estate in Blackacre to T's children, a successive life estate in Blackacre to T's grandchildren followed by a Fee Simple future interest in T's great-grandchildren. However, the Rule Against Perpetuities would void the interest to T's great-grandchildren, and leave the will creating the successive life estates with a reversionary interest in T's estate.
Why? The rules states that any interest must vest, if at all, within 21 years of a life in being at the time of the instrument. The instrument here is a will, so the time of the instrument is T's death, not when the will was drafted. Next, we need to find every possible person, whether named in the instrument or not, who could, regardless how remote the possibility, affect the instrument. T's children, grandchildren etc. are our possible measuring lives because they control who will take Blackacre. For a measuring life to be valid, it must be a life in being at the time of the interest. For a class, such as children, grandchildren, to be valid measuring lives, it must be a closed class, meaning it would be impossible for another class member to come into existence after the time of the instrument.
In the above example, T's children are a valid measuring life. T's children are a class, so the class must be closed at the time of the instrument for T’s children to be valid measuring lives. Here, the class that is T's children would be closed at the time of the instrument as it is impossible for T to have any children after T dies. So any interest which must vest within 21 years after T's children die is valid. The class that is T's grandchildren is NOT a valid measuring life as T's children are free to reproduce after T dies, meaning the class is not closed at the time of the instrument. Obviously, the same goes for T's great-grandchildren for the same reason.
Now that we know our valid measuring lives, we can see which interests in Blackacre are valid. Obviously, the life estate to T's children is valid as they are the measuring lives. The life estate to T's grandchildren is also valid. Why? Because all of T's grandchildren must be born within 21 years of a measuring life. T's children are our measuring lives, all of T's grandchildren must be born before the last of T's children dies (or, at least be in the womb, which counts as being alive for RAP purposes), meaning their interest would vest within 21 years of a measuring life. T's great-grandchildren's interest is invalidated by the Rule. Why? Because T's grandchildren are free to reproduce after all of T's children have died. It is possible that one of T's grandchildren could have a child more than 21 years after T's last child died, meaning the interest might not vest within 21 years of a life in being.



Statement 2 + Explanation
Orville to Adam for life, then to Adam’s children for life, then to Adam’s grandchildren who survive their parents

Purportedly, Adam has a life estate, Adam’s children have a contingent remainder for life (unless Adam already has children alive, in which case the children alive have a vested remainder subject to open [but that’s a contingent remainder for the purposes of the Rule Against Perpetuities]), and Adam’s grandchildren either have a contingent remainder in fee simple absolute or a vested remainder subject to open in fee simple absolute (this remainder is contingent for two reasons: we don’t know who they are, and they must survive their parents). The gift to the children is okay, because the children will be ascertained when Adam dies. If Adam has more children after the date of this gift, then Adam dies and any other children and grandchildren die, then we might not know whether there will be any grandchildren that survive the “new” child until 21 years after the death of everyone living at the time of the gift. Thus, though the gift to Adam’s children will be okay, the gift to the grandchildren will violate the Rule Against Perpetuities and Orville will have a reversion instead. All in all, after the Rule, you’ll have a life estate in Adam, a life estate in Adam’s children, and a reversion in Orville.



Any help would be greatly appreciated, thanks!

Arturo
Posts: 32
Joined: Thu Dec 09, 2010 3:13 pm

Re: Rule Against Perpetuities question...

Postby Arturo » Wed Apr 13, 2011 4:37 pm

Is it because the difference is in the first one the gift is made at T's death whereas in the second one the gift is made while Adam is still alive and that I read it wrong (meaning the second one says Adam has a kid after the gifting and not after his death)? If that's the case it makes more sense now.. If someone could confirm this that would be great.

Geist13
Posts: 739
Joined: Sat Oct 10, 2009 3:21 pm

Re: Rule Against Perpetuities question...

Postby Geist13 » Wed Apr 13, 2011 9:22 pm

I'm dead -- Can I still have children? No.

I'm dead -- Can someone else still have children? Yes.

Geist13
Posts: 739
Joined: Sat Oct 10, 2009 3:21 pm

Re: Rule Against Perpetuities question...

Postby Geist13 » Wed Apr 13, 2011 9:32 pm

Geist13 wrote:I'm dead -- Can I still have children? No.

I'm dead -- Can someone else still have children? Yes.


edit here's the whole RAP analysis (I haven't read the wiki explanations)

#1 --> T conveys to his children, but note that he can still have afterborn children (because he's not dead yet). Therefore some of his children could possibly not qualify as lives in being. This means that the interest could possibly vest in those individuals children (T's grandchildren) more than 21 years after all the lives in being had died (e.g. child #5 who is an after born child is only 2 years old when all his other siblings die and he lives to be 100. Interest would not vest in his child (grandchild) within 21 years of the lives in being). Thus all the first generation interests are valid, but none of the others are

#2 --> T conveys to adam for life. Adam's interest is still good becuase he's a life in being. He has some kids maybe, he has some afterborn kids maybe. But either way, the interest will vest or fail as soon as he dies. therefore he's a validating life for all his children. The interest in his grandkids is invalid though for the same reason as above. He could have afterborns who are not lives in being. Their children's interest could, therefore, possibly vest or fail more than 21 years after all the lives in being have passed.




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