← The hardest concepts in United States law
In one breath
Under the common-law Rule Against Perpetuities, a future interest is void unless it is certain, at the moment it is created, to vest or fail within the lifetime of someone alive then plus twenty-one years. The test looks at what could possibly happen, not at what does happen, and many states have softened it.
The picture
The archivist and the time capsule
An archivist is offered a time capsule that may be opened only when an event occurs, such as the youngest grandchild of the donor reaching twenty-five. On the day it is sealed she must be able to say, with certainty, that the opening condition will be settled one way or the other within the lifetimes of the people standing in the room, plus twenty-one years. If she can imagine any course of events in which it is not, she refuses the capsule, however unlikely that course is.
The people in the room are the lives in being. The archivist may not wait and see. She does not ask whether the capsule will probably be opened in time but whether it could, in any possible future, stay unresolved too long, even if that future involves someone not yet born. If so, the gift is void from the start, and nothing that happens afterwards can rescue it.
Where the picture stops working
The archivist cannot be reformed, but the rule can. Many states now let a court wait and see what happens, reform a gift to comply, or limit or abolish the rule. The picture shows the traditional common-law rule, the form students are usually tested on.
How it really works
- 1Check that the rule applies. At common law it reaches contingent remainders, executory interests, vested remainders subject to open and certain options. It does not reach interests kept by the grantor (reversions, possibilities of reverter, rights of entry), a vested remainder in a certain person, or a gift from one charity to another.
- 2Fix the moment of judgment. The interest is tested at the time it is created, which for a will is the testator’s death.
- 3Ask whether there is a validating life: a person alive at that moment such that the interest must vest or fail no later than twenty-one years after that person’s death. If there is, the interest is valid.
- 4If the answer depends on something that could happen later, the common-law rule says it is void, even if that thing almost certainly will not happen. Test the worst case: spouses not yet met, children born after the grant, an age condition on a child who may be born late.
- 5Find out whether your state has changed the rule, for instance by wait-and-see, by reformation, or by statute. If an interest is void, only that interest falls; the interests before it stand as written.
Why people get it wrong
- Asking what actually happened. Under the common-law test it does not matter that the child in fact reached the required age in time.
- Treating it as a limit on how long a person may hold property. It limits how long the vesting of a future interest may remain uncertain.
- Using a person born later as the validating life. The life must be someone alive when the interest is created.
- Confusing vesting with taking possession. The rule asks when the interest vests; possession may come much later.
- Applying common sense to unlikely events. At common law a person is conclusively presumed able to have children whatever their age, and a future spouse may be someone not yet born.
A worked example
The facts are invented
Thomas’s will leaves land “to my daughter Elena for life, then to such of Elena’s children as reach the age of twenty-five.” When Thomas dies, Elena is alive and has one child, aged ten. The class of Elena’s children closes at her death. But Elena might have another child just before she dies. That child, not alive when Thomas died, would reach twenty-five more than twenty-one years after Elena’s death, and no life in being could cover the gap.
Because it is a gift to a class, the whole class gift fails if any member’s interest could vest too late. Under the common-law rule the gift to the children is void from the outset, even though Elena in fact had only one child, and that child reached twenty-five in good time. Elena keeps her life estate, and the land then passes as if no gift to the children had been made. Under wait-and-see, the gift would be tested by what actually happens and would stand.
Try it
A will leaves land to “my first grandchild to qualify as a lawyer.” At the testator’s death she has two living children and no grandchildren. In fact a grandchild qualifies ten years later. Under the traditional common-law rule the gift is:
Landmark authorities
Read the sources themselves; this list is a starting point.
- Cadell v. Palmer, (1833) 1 Cl. & Fin. 372, 6 Eng. Rep. 956 (House of Lords)
- John Chipman Gray, The Rule Against Perpetuities, (1886), the classic treatise
Where to go next
More hard concepts in United States law
- Future interests (Property law)
- Easements and covenants running with the land (Property law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. United States law is made in fifty states and in the federal system, and the rules differ between them. Each page states the usual formulation of the rule and names landmark decisions; your own state, circuit or course may use different wording. Check the primary sources before relying on any rule.