변호사 이재욱의 미국법 이야기 (Attorney Lee's commentary about U.S. law)

 

The Rule Against Perpetuities

  

Rationale

The Rule Against Perpetuities (RAP) reflects the idea that property should be controlled by the living, not by the “dead hand.” Thus, an interest that remains contingent once the perpetuities period expires is void.

 

 

The Rule

No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.

 

 

Application

Olivia devises Blackacre “To Arnold for life, then to the first child of Arnold to marry and the heirs of that child.” Arnold is alive on the date of this devise but has no children.

Consider the following questions when analyzing the Rule Against Perpetuties:

1. Does the RAP apply to the interest involved?
   • The RAP applies only to contingent remainders, executory interests, and certain vested remainders subject to open. The RAP does not apply to any future interested created in the grantor.
   • Arnold has a life estate, and his unborn child has a contingent remainder because the child is not ascertainable and must meet a condition precedent.
2. When does the perpetuities period begin?
   • The beginning of the perpetuities period depends on the effective date of the instrument that created the interest.
   • Olvia “devised” Blackacre, so the instrument is a will. A will becomes effective on the date of the testator’s death.
3. What is the condition precedent to vesting of the future interest?
   • Consider what must happen before the interest will vest in the grantee, not what must happen before the grantee has possession. If a class gift is involved, all class members’ interests must be valid.
   • The condition precedent is that Arnold must have a child who gets married. If Arnold never has children, or has children who never marry, the interest will fail.
4. Who are the lives in being?
   • The lives in being that are relevant are those people who are alive (or in gestation and later born alive) on the effective date of the instrument and who can affect vesting.
   • The relevant lives in this example are Olivia and Arnold because they were the only relevant people alive on the day the will became effective.
5. Will the interest be validated?
   • Determine whether the interest could vest or fail for the lives in being during their lifetimes plus 21 years. Presume that anything is possible. If the interest could vest during any of their lifetimes, it is valid under the RAP.
   • Arnold must have a child who marries within Arnold’s lifetime plus 21 years. Is this possible? Arnold could die tomorrow, or 40 years from now, without children. Arnold could have one child or many children over the next few years, and within 18 years of that time, one of his children could be married. It is possible that Arnold could have a child who marries within his lifetime plus 21 years. Therefore, this contingent remainder is valid under the RAP.

 

 

The Rule in Shelley’s Case

The Rule in Shelley’s Case, which now has been abolished in almost every jurisdiction, was applied to conveyances that created a life estate in one person and a remainder in that person’s heirs. For example, if Olivia conveyed Greenacre “To Arnold for life, then to Arnold’s heirs,” the two interests would merge, and Arnold would have a fee simple absolute. Arnold’s heirs would have nothing.

 

 

Reforms in the Rule Against Perpetuities

• Some states have adopted a “wait and see” approach to determine whether the interest vests during the perpetuities period.
• Under the Uniform Statutory Rule Against Perpetuities (USRAP), an interest is valid if it vests during the common law period or within 90 years of its creation.
• The cy pres doctrine allows courts to attempt to match the grantor’s interests “as near as possible” to validate the interest.

 

 

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