The Moribund Rule Against Perpetuities
| Publication year | 1987 |
| Pages | 37 |
| Citation | Vol. 16 No. 1 Pg. 37 |
1987, January, Pg. 37. The Moribund Rule Against Perpetuities
Some rules of law, including the Rule Against Perpetuities ("Rule") have what resemble biological life cycles: birth,(fn1) growth, maturity,(fn2) decline and, in some cases, death. The Rule is now obviously in decline and is no longer "remorselessly applied."(fn3)
Doctrines of equitable approximation, preservation of the testamentary scheme and saving clauses have validated otherwise remote interests in deeds, wills and trusts. Reformation for mutual mistake and implied terms of reasonableness have done the same for property interests created by contract. Furthermore, these judicial doctrines have been confirmed and supplemented by a variety of statutes.
In all of these instances it is said that the purpose of the Rule has been fulfilled because no interest is allowed to vest more than twenty-one years after some life in being at the creation of the interest. This is true in the particular cases, but the fact is that, by these means, the Rule is being destroyed, as is shown by the following examples.
In In re the Estate of Chun Quan Yee Hop,(fn4) a will created a trust and provided for distribution "upon the death of my wife . . . or thirty years from the date of my death, whichever shall last occur. . . ."
We are not alone in judicially adopting the doctrine of equitable approximation . . . [W]e therefore hold that any interest which would violate the Rule Against Perpetuities shall be reformed within the limits of the Rule to approximate
most closely the intention of the creator of the interest. In the present case . . . the thirty year period need only be reduced to twenty-one years to bring the trust within the Rule.(fn5)
Based on this case, what lawyer would now advise an heir to spend time and money challenging the validity of a remote devise of Hawaiian land? What Hawaiian trustee, assured that no trust would be held to be void for remoteness, and conscious of his duty to protect the trust, would now feel obligated to spend trust funds to obtain a decree which might shorten the term of the trust?
In In re the Estate of Showers(fn6) a will directed the executor to sell the land "for not less than three-fourths its appraised value" and then to divide the proceeds. An heir and one who had contracted to purchase the land sought a determination of the validity of the executor's power to sell because it was not certain that the land could be sold for three-fourths of its appraised value within the time limits of the Rule.
Quoting with approval from other Kansas cases, the court said that "the thing to be preserved is the testamentary scheme . . . of the testator. . . . [I]f the void clause can be taken out and the testamentary plan followed then that should be done." The court...
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