1.The Rule Against Perpetuities
a.The Common Law Rule
i.Rule Against Perpetuities says that no interest is good unless it must vest, if at all, not later than 21 years after some life-in-being at the creation of the interest.
1.“Vest, if at all” means that the contingent interest must necessarily vest or fail within 21 years of the life-in-being
ii.Definitions needed to understand the definition
1.Rule only applies to contingent remainders
a.Rule Against Perpetuities views vested remainders subject to open as contingent remainders
2.Life-in-being must:
a.Effect the interest in question – meaning the contingent interest must be dependent upon the ending of the life-in-being
b.In order for the life-in-being to validate the contingent interest in question, it must:
i.be ascertained at the time of the grant
ii.affect the vesting, or failure of the vesting, of the interest in question
iii.How to Analyze for Rule Against Perpetuities
1.Questions to Ask
a.Is the remainder contingent or vested under the Rule?
i.If vested, the Rule doesn’t apply
ii.If contingent go to b.
b.What makes this remainder contingent?
c.Who affects when/whether it becomes vested? (=”validating life”)
d.Is that person a life in being?
i.If yes go to e.
ii.If no go to f.
e.If the remainder becomes vested, will it necessarily vest within 21 years of the death of the validating life?
i.If yes, it does no violate the Rule.
ii.If no, it violates the Rule.
f.Analyze all other lives in being will the remainder necessarily vest or fail within 21 years of their death?
b.The Wait-and-See Doctrine
1.Literally wait and see if any interest vests within 21 years of a life in being, if so the grant is good – opposite of Jee v. Audley
ii.Common Law Approach
1.Wait until the life in being ends + 21 years to see if the contingent interest actually vests