The common law rule against perpetuities Iorbids some Iuture interests that may not vest within the time permitted. The rule has its origin in the Duke oI NorIolk's Case oI 1682 2. The testator's power to earmark giIts Ior remote descendants is limited.
The common law rule against perpetuities Iorbids some Iuture interests that may not vest within the time permitted. The rule has its origin in the Duke oI NorIolk's Case oI 1682 2. The testator's power to earmark giIts Ior remote descendants is limited.
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The common law rule against perpetuities Iorbids some Iuture interests that may not vest within the time permitted. The rule has its origin in the Duke oI NorIolk's Case oI 1682 2. The testator's power to earmark giIts Ior remote descendants is limited.
Copyright:
Attribution Non-Commercial (BY-NC)
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Download as DOCX, PDF, TXT or read online from Scribd
The common law rule against perpetuities Iorbids some Iuture
interests (traditionally contingent remainders and executory interests) that may
not vest within the time permitted; the rule "limit|s| the testator's power to earmark giIts Ior remote descendants". |1| In essence, the rule prevents a person Irom putting qualiIications and criteria in his will that will continue to control or aIIect the distribution oI assets long aIter he or she has died, a concept oIten reIerred to as control by the "dead hand" or "mortmain". 'No interest is good unless it must vest, iI at all, not later than twenty-one years aIter the death oI some liIe in being at the creation oI the interest. |2| For the purposes oI the rule, a liIe is "in being" at conception Meaning of Perptuity: As held in Ram Baran v. Ram Mohit 1 the term 'perpetuity has been deIined as 'a Iuture limitation whether executory or by way oI remainder and oI either real or personal property which is not to vest until aIter expiration oI, or will not necessarily vest within, the period Iixed and prescribed by law Ior the creation oI Iuture estates and interests. Origin: Duke of Norfolk`s Case : The rule has its origin in the Duke oI NorIolk's Case oI 1682 2 That case concerned Henry, 22nd Earl oI Arundel who had tried to create a shifting executory limitation so that one oI his titles would pass to his eldest son (who was mentally deIicient) and then to his second son, and another title would pass to his second son, but then to his Iourth son. The estate plan also included provisions Ior shiIting the titles many generations later, iI certain conditions should occur. When his second son, Henry, succeeded to one title, he did not want to pass the other to his younger brother, Charles. Charles sued to enIorce his interest, and the court held that such a shiIting condition could not exist indeIinitely. The judges believed that tying up property too long beyond the lives oI people living at the time was wrong, although the exact period was not determined until another case, Cadell v. Palmer, 150 years later. --------------- Objectives of Rule against perpetuities: The main objective Ior the creation oI this rule is to restrain the creation oI Iuture conditional interests in property. The rule against perpetuities was intended to prevent people Irom tying up property - both real and personal - Ior generation aIter generation. According to Blackstone, by perpetuities estates are made incapable oI answering those ends oI social commerce and providing Ior the sudden contingencies oI private liIe Ior which property was at Iirst established. 3
1 Al8 1967 SC 744 (vepa sarLhl p 36) 2 3 Ch. Cas. 1, 22 Eng. Rep. 931 (Ch. 1682) 3 vepa sarLhl p 33 !erpetuity or creation oI remote interests in Iuture is the result oI the desire oI many men oI property to rule beyond their liIetime Irom their graves by regulating the succession to their property. 4
%ying up of property was prevented through this process. In Ieudal England, the practice was to put land in trust in perpetuity, with succeeding generations living oII the land without actually owning it. The catalyst Ior this practice was the avoidance oI certain taxes which were being levied upon the transIer oI land upon the death oI the owner ans perpetual trusts avoided the tax. 5
The rule against perpetuities, then, was designed to insure that some person would actually own the land within a reasonable period oI time after the death of the transferor. To accomplish that result, the rule stated that no interest in property would be valid unless it could be shown that the interest would vest, iI at all, no later than 21 years aIter some liIe in being at the creation oI the interest 6 . Thus the rule against perpetuity or the 'rule against remoteness prohibits the non-vesting oI interests beyond a certain period which is not reasonable. It prescribes the maximum period within which a Iuture interest must vest, and iI the vesting is postponed beyond such maximum period the limitation would be void Ior remoteness. Thus against arbitrary alienation oI property. 7
Rule in English Law In the &nited Kingdom, dispositions oI property subject to the rule beIore 14 July 1964 remain subject to the rule. |3| The !erpetuities and Accumulations Act 1964 provides Ior the eIIect oI the rule oI interests created thereaIter. This act codiIies the "wait and see" doctrine developed by courts. $ee also. Perpetuities and Accumulations Act 2009
In order to mitigate the harshness oI the Rule Against !erpetuities, some states have embodied the wait-and-see doctrine in statutes. The general concept oI wait-and-see is that a perpetuity violation should occur only iI an interest actually Iails to vest within the perpetuity period. In contrast to the traditional view, which prescribes that the situation is examined as it exists when the interests are created, thereby invalidating the interests iI a possibility exists that they will Iail to vest in due time, one must wait and see whether, in Iact, the possibility turns out to be an actuality.
4 vepa sarLhl book pg 33 3 hLLp//legalblogresourcesforaLLorneyscom/lndexphp?m03y06d10enLryenLry060310 130008caLegory1 6 hLLp//legalblogresourcesforaLLorneyscom/lndexphp?m03y06d10enLryenLry060310 130008caLegory1 7 vepa sarLhl p 33