What is the Rule Against Perpetuities?

The Rule Against Perpetuities has confused law students for centuries and familiarity with it has been a rite of passage for aspiring attorneys. While the title may sound intimidating, this aspect of property law is an important part of any transfer of property ownership. 

Understanding Rule Against Perpetuities (RAP)

The Rule Against Perpetuities (RAP) is a principle of property law that, at its core, seeks to prevent property interests from being unduly restricted or controlled indefinitely. It is an important consideration when an attorney prepares a will, trust, or estate plan, as well as any other legal document that seeks to transfer ownership of property. 

Statement of the Rule

A future interest is valid only if that interest must vest, if at all, no later than 21 years after some life-in-being (in existence) at the time of the creation of the interest. This is often referred to as "a life-in-being plus 21 years."

There are a number of policy reasons for the rule against perpetuities:

1. Free Alienability of Property: The rule promotes the free transfer and use of property. If interests in property could be controlled indefinitely from the grave, it might hamper the current generation's ability to use the property as they see fit.

2. Avoidance of Uncertainty: The rule seeks to prevent the creation of property interests that are contingent on distant, speculative events.

Common Law Origins of the Rule Against Perpetuities

The Rule Against Perpetuities originated in English common law. It became part of American law and has evolved over time as the result of several relevant court decisions. 

While the RAP started as a common law doctrine, its complexities and nuances led many jurisdictions, especially in the U.S., to codify it in statutes. These statutory versions often simplify, modify, or eliminate traditional RAP requirements. For instance, some states have adopted a "wait-and-see" or "cy pres" approach, which allows courts to determine the validity of a future interest based on actual events rather than theoretical possibilities.

The Fertile-Octogenarian Rule

This whimsically named rule is one of the legal fictions associated with the RAP. It presumes that regardless of a person's age, even an 80-year-old (hence, octogenarian), they can still have children (hence, fertile). For instance, if a grant provides for property to go to A for life, then to A's children, but if any of A's children die before the age of 30, their share goes to their descendants, we must assume, to apply the RAP, that A could have a child on the day A dies, and that child could live for nearly 30 years, thereby potentially pushing the vesting of the interest beyond the life of A plus 21 years, violating the RAP. 

In practice, this rule often leads to seemingly absurd results. Yet, it's an attempt to set a bright-line standard to address the myriad of possible contingencies that can be written into property transfers. 

In summary, the Rule Against Perpetuities is a complicated but crucial component of property law that seeks to strike a balance between allowing individuals to control the future use of their property and ensuring that property remains freely alienable and usable by future generations. As the complexities of the rule created challenges in its application, many jurisdictions have sought to modernize or simplify the rule through statutory reform. 

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