Thanks, Melin. Though I must say that simply explaining that there’s a presumption that everyone, even an 80-year old woman is fertile (though in New York the law is now that she is presumed infertile unless, somehow, she is in fact fertile) doesn’t begin to capture the trouble our fertile octogenarian can cause (particularly to the brains and digestions of law students).
CowJason wondered “how can a time table as variable as ‘not later than 21 years, plus period of gestation, after some life or lives in being at time of creation ofinterest’ possibly be used in court?” Both Melin and I, sorta ducked the question by saying it’s so damn complex that a month or more of law school is required to explain it and courts recognize that even competent lawyers are likely to screw it up.
But to just touch on the rule, a person is considered to be a “life in being” if that person is alive (or in gestation) and that person’s identity can be definitively determined at the time of the grant. If someone gives a gift during that persons’ life (let’s call the person the Grantor) to “my son Jason,” Jason is a life in being because he is alive and we know who he is. However, if the Grantor gives a gift “to my children” (without specifying individual names of children), the children would not be considered “lives in being” under the rule against perpetuities because there is the possibility that the Grantor could have another child after the date of the gift.
Now changing the facts a little bit, let’s say that the Grantor gives a gift “to my children” by will at death. Then, all of the Grantor’s children will be considered lives in being, because the late Grantor is extremely unlikely to have any more children due to his recent demise (putting aside children in gestation, who will get sorted out within 9 months or so – and no cracks about sperm banks and the like, this is centuries old English common law we are talking about).
Now let’s say Grantor is an 80-year old woman. We all know that she will no longer have any children, but under the common law she is presumed to be fertile, and her gift during her lifetime “to my children” is considered not to be one to “lives in being.” Because of this, certain gifts she might make “to my grandchildren” would be void under the rule against perpetuities because they might not vest (and don’t ask what it means to vest, it ain’t pretty) within 21 years after the death of the Grantor’s children.
Now, if the Grantor were someone who might be reasonably expected to have more children, this result might be just what we expect. However, if this poor old grandma, who knows who her children are and that she will have no more, goes to her lawyer and asks to set up a trust that will be distributed to her grandchildren who survive to their 18th birthdays, imagine her surprise that the trust might be totally void. (Note that if she did the same thing in her will, it would be perfectly fine).
Now doesn’t that clear it all up?
This is just one touch of the fun that you can have with the rule against perpetuities.
: Billdo, it’s going to be fun having you around this board!