equity and trust- The unborn widow

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h974483
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Joined: Mon Nov 26, 2012 5:01 pm

equity and trust- The unborn widow

Postby h974483 » Sat Feb 15, 2014 8:00 am

HI I am struggling to understand the material I got from wiki:

Note that changing the word "issue" to "children" will not make the gift valid. It appears at first that A's child might serve as the "life in being" if they were born at the time of the grant. However it is possible that, following the grant, such a child would die - this in itself does not render the grant invalid as such an eventuality would mean the interest NEVER vests, a possibility that does not invoke the rule against perpetuities. But it is then possible for A to father more children before death. These further children cannot then serve as "lives in being", forcing A to once again fill that role.

My understanding is, once the child died then the interest is to be transferred to either another child of the child's issue. But I still not understand the letters in bald. Can someone explain it to me?
Thanks

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fourtyacslaw
Posts: 47
Joined: Mon Feb 18, 2013 12:53 pm

Re: equity and trust- The unborn widow

Postby fourtyacslaw » Mon Feb 17, 2014 2:21 pm

h974483 wrote:HI I am struggling to understand the material I got from wiki:

Note that changing the word "issue" to "children" will not make the gift valid. It appears at first that A's child might serve as the "life in being" if they were born at the time of the grant. However it is possible that, following the grant, such a child would die - this in itself does not render the grant invalid as such an eventuality would mean the interest NEVER vests, a possibility that does not invoke the rule against perpetuities. But it is then possible for A to father more children before death. These further children cannot then serve as "lives in being", forcing A to once again fill that role.

My understanding is, once the child died then the interest is to be transferred to either another child of the child's issue. But I still not understand the letters in bald. Can someone explain it to me?
Thanks


You're incorrectly assuming that the issue of any of A's children (e.g. A's grandchild) are relevant to the RAP in this case.

Do yourself a favor and forget about any heirs/issue that A's children may have, and instead think of it in terms that the conveyance of the interest the named party (in this case the class of A's children). The RAP isn't concerned with heirs/issue of parties that are not named in the conveyance, except those that would help to serve as a measuring life or to "cut off" classes involved in the conveyance. Concern yourself only with the validity of the transfer to the named party/class in the conveyance, and disregard any possibility of heirs/intestate succession. The truth is that if you could effectively "kill off" the entire class of A's children, that the interest would fail/never vest in them—thus satisfying the RAP. That's what you're concerned about.

The problem the wiki is discussing is that a child of A that was living at the time of the conveyance is not a measuring life, because "killing off" this child does not effectively close off the class of A's children, since A could subsequently have another child that would enter that class. In order for the class of A's children to serve as a measuring life/lives, the class itself must be closed. The only way to close off the class of A's children, is to "kill off" A himself, and that leads you right back to the issues of using A as the measuring life the wiki discusses above your quoted exerpt.

I hope this helps, and let me know if my explanation wasn't clear. Understanding the RAP and being able to explain it to someone else are two entirely different things. If I could boil down everything I said, it would be to completely ignore parties/classes that are not named in the conveyance, unless they could serve to cut off classes named in the conveyance (e.g. "O->A's children for life" — The party "A" is not explicitly named, but still serves as the measuring life to cut off the class of "A's chidren").




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