Are there any lawyers in the house?
How do I figure out the life in being?
My professor has been lecturing for two classes for this but I still can’t understand it, it’s like he’s speaking Russian, please help…
Can you at least recommend a good text to help me understand this?
Watch Body Heat.
Um. Are you serious? Watch a movie to understand this?
Seems like I found a good article on the topic by Dukeminier when I was trying to learn it.
Here is an interesting onling powerpoint presentation about the rule
http://www.law.gwu.edu/facweb/dnunziato/Rap.ppt
What confuses you about the life in being part of the rule?
The person must be alive at the time of the grant. That is the gist of the life in being part.
Give me some hypos, and I can help you out.
Basically the RAP states that an interest you create can not be any longer thanb 21 years after a life in being at the time of the creation of said interest. This can be translated as not being able to create an interest that will survive 21 years after someone that is alive at the time you create the interest dies. It is important to note that this RAP applies only to contingent or split interests and is a rule of common law designed to eliminate uncertainty. For a pretty ‘folksy’ description see:
http://www.duhaime.org/Real-estate/ruleperp.htm
The hypothetical we used today was basically the facts of Bank v. Norris, which I am thoroughly confused about. If the life in being was Thomas, how did the other grandchild (hypothetical one) get the estate? What if the hypothetical grandchild’s relatives all died, including the life in being, a day after his birth? According to what I understand about the Rule, when the grandchild turns 21 the gift fails. The gift was supposed to vest at when the grandchild turns 25, how could the grandchild still get the property when it’s been more than 21 years after the life in being dies?
I can only surmise that I am badly wrong about who the life in being is, and so I need help in deciding that. I will read all articles about it later tonight – got to start listening to Legislature.
sigh What did I get myself into? 
Only if you’re interested in seeing a hot, young, sweaty, naked Kathleen Turner (which is, admittedly, a good reason to see a movie). My Wills & Estates prof used the “will scene” to illustrate certain principles by pointing out the numerous errors made by the filmmakers.
(Good prof, he was – I also had him for Evidence, and he used the penultimate courtroom scene in Miracle on 34th Street to illustrate both the substance of and rationale behind the hearsay rule; suffice it to say that in real life none of those letters would have made it before the jury, and Santa would have ended up in a rubber room at Bellvue).
As for the RAP – the best way to understand it is to work with it. It shows up on the Property section of the Multistate Bar Exam – I’d stop by your law school’s library and see if they have books of old MBE exams (preferably one with explanations of each answer) and try working the RAP problems. It is indeed a pain in the ass, though.
I don’t recall the case. Can you quote the grant language?
Remember, the determination of validity is made at the time of the grant. The life in being (known as the measuring life) must be alive, and you must be able to identify the grantees (or determine that there are none) within 21 years of the conveyance.
Bonus question:
How could the lawyer character in Body Heat have changed to will to make the conveyance violate the Rule Against Perpetuities?
I remember reading that the state that Body Heat is set in (Florida maybe? I haven’t seen it) had a “wait and see” rule, so the RAP wouldn’t ave been applied like that.
Elysian: there are a handful of RAP violations with colorful names like “the unborn widow” and “the fertile octogenarian” that show up endlessly in various fact patterns in law schools throughout time. Learn to recognize these and you’re home free.
GFactor: make some uninvolved third party the measuring life? Wild guess; as I say, I haven’t seen it.
Florida, yes. They now have a hybrid statute with a 90 year wait and see period. The statute was not effective until 1988, and the movie was released in 1981.
The devise was to the murder victim’s daughter, who was spedifically named in the original will. Ned Racine (played by William Hurt) is enticed by the victim’s wife to revise the will. The revision that he prepares violates the RAP.
“From O to wife for life, then to named daughters for life, on the death of last daughter, to the children of my daughters (i.e. my grandchildren) for life when they turn 25, then to lawful issue of my grandchildren”
O apparently had a grandson named Thomas when he keeled over. My Property prof says that the gift would fail for the great-grandchildren. I know that the life in being is Thomas. I know that the Rule says that after Thomas dies there is 21 years in which the gift can vest.
What I don’t get is why the hypothetical other grandchildren of O would get the gift also. What if one of the named daughters has a child, and then everyone but that child kicks the bucket, like less than a month later in some bizzare epidemic. If the life in being is Thomas, and he dies, and the other child is only a month old, doesn’t the Rule say that the gift will fail???
I’m just missing something here, or maybe I haven’t understood it fully yet.
I’ve been looking over my notes and I really don’t know if the “when 25” provision is in there. Does that make a difference?
Is the conveyance in a will?
Yes, that makes a huge difference. With the “when 25” provision the gift appears to have an age contingency beyond age 21 in an open class, the classic “fertile octogenarian” violation of RAP.
Not a very good example. There is a lot of ambiguity in the grant. The exact language is important. So, yes we need to know whether the 25 year part is in there, and specifically what it says.
Ok. Here’s how I look at this one. I am assuming it is a will.
O to wife for life. Fine.
named daughters for life. Fine.
death of last daughter to children of my daughters. The daughters, who are named, are a closed class of measuring lives. The question is whether the devise to the grandchildren will vest or not within 21 years of the death of the last daughter. The fact that there is one grandchild alive is irrelevant (the class of grandchildren will not close until the last daughter dies). The answer depends on how we treat the 25 year requirement. If it is a condition precendent, then no, the last daughter could die during childbirth, leaving a child who will not be 25 within 21 years. Of course, if the 25 language is a divesting condition (e.g., they get the interest, but if they don’t make 25, they lose it), then the answer is yes. So the language of the grant makes a big difference.
If the 25 year deal is out altogether, we will know the class of grandchildren by the time the last daughter dies. Therefore, in that case, the interest is valid.
lawful issue of my grandchildren. Ain’t gonna work. Thomas cannot be a measuring life because thomas could be hit by a truck the day after O dies. Any of the daughters could have another child or children. And the class of the children of those children will not close within 21 years.
There ya go.
I finally found the case. It’s North Carolina National Bank v. Norris. It was a will, not a gift. Here’s the exact wording of the will from the case:
“Fourth: I give, devise and bequeath to my three daughters, May M. Allison and Annie M. Hunter and Marjorie M. Norris, all of my estate, below described, during their natural lives and at the death of either of my said daughters, I give, devise and bequeath all of said property to the survivor or survivors alike, and at the death of the last survivor, I give, devise and bequeath all of my estate below described to the child or children of my said daughters for and during the natural life or lives of such child or children (my grandchild or grandchildren) with remainder over to the lawful issue of such grandchild or grandchildren forever. In default of such issue from such grandchild or grandchildren, the remainder shall go to Peace Institute of Raleigh, N. C., absolutely and forever. First of all, however, I give, devise and bequeath to my wife, Bettie L. Montague a life estate in and to all the property below described in this section (Section Fourth), and at her death, the same shall descend to my said daughters in the manner and form above specified in this section (Section Fourth).”
Tha opinion in the case says that the grandchild, Thomas, was six years old at the time of Montague’s death. It also says:
“Had [one or more children been born to the daughters], the life estates which he provided for his grandchildren might well have extended and postponed vesting of the remainder in his great-grandchildren to a date beyond the time prescribed by the rule.”
I guess this is what I’m confused about. How does the gift “clearly” fail?
Thank you, everyone, for your help and patience.
It clearly fails because you can’t prove that it will vest within 21 years within a life in being. The Thomas thing is a red-herring.