Not in perpetuity
One bit of arcana that many law students come to think their professors dreamed up just to torture them is a rule of property law known as “the Rule against Perpetuities.” It was actually a doctrine the United States inherited from our British cousins, and also is one of those things making legal reasoning look utterly ridiculous to the average person.
The Rule against Perpetuities cannot adequately be explained in this limited space — volumes have been written on it — but, basically, it runs something like: “An interest in property is void if there is any possibility that it will vest, if at all, not later than twenty-one years after some life in being at the time of the creation of the interest.” Got all that? No? Well, that’s why there is so much business for lawyers, especially in the area of probate law.
The Rule (lawyers like to capitalize it) was intended to prevent property being transferred, usually through a will, without it being clear for many years, or even generations, who would eventually own the property, or even if those people would ever exist. For example, suppose someone writes a will leaving her property “to my great-grandchildren,” but then dies leaving behind only young children. When will anyone find out if that person will ever even have “great-grandchildren”?
So far, so good; the Rule helps by invalidating ambiguous wills like that. But when carried to an extreme, it leads to some pretty silly results. Wills and trusts have been thrown just simply because of a “possibility” they might violate the Rule. Consider:
• A very old man dies leaving an eighty year-old daughter (who has never had children). His will, written many years before, mentions “grandchildren.” In some states, the mere possibility that she might still have children (even though it’s biologically impossible) would invalidate the will. (This situation is known as “the fertile octogenarian.”)
• Someone dies leaving property “to my spouse.” Because, when the will was written, it was possible that the person who wrote the will might eventually get divorced, and remarry someone who wasn’t even conceived when the will was written (a “February-december” romance, as it were), the will is invalid.
On the other hand, these transactions would have been valid if the instrument said something like “the interest will vest when the last person now living in China dies.” Which, as anyone would agree, is a sensible distinction.
Or, as happened in a California Supreme Court case in 1961, a trust established by someone’s will was declared invalid because it stated that the trust property would be distributed five years “after the court probate proceedings end.” Because that could theoretically have taken longer than Rule’s time limits, the trust was invalidated. The trust beneficiaries lost about $75,000 — which, as they say, was real money in 1961.
What made the case remarkable, however, was that the California Supreme Court had to decide if the attorney who wrote the trust could be sued for malpractice. Although the attorney’s failure to take the Rule into account cost his clients dearly, the Court ultimately decided that the rule is so complicated that “an attorney of ordinary skill might well have fallen into the net which the Rule sets for unwary.”
Unfortunately, the “unwary” were the poor clients who relied on the lawyer to draft the trust competently. The Supreme Court seemed to be saying, in effect, “Hey! Even lawyers can’t be expected to understand the Rule!” So one wonders: if even lawyers can’t understand it, to whom does the average person turn for legal advice?
I cannot leave this subject without mentioning the 1981 movie Body Heat, in which a somewhat disreputable Florida lawyer, Ned Racine (played by William Hurt) becomes involved with a mysterious woman named Matty Walker (played by Kathleen Turner). When Matty’s wealthy husband dies under mysterious circumstances (to say more would be telling), her husband’s will turns out to have recently been changed and the changes end up violating the Rule against Perpetuities.
Matty claims that Racine had made the changes to her husband’s will. (Actually, it turns out that she herself had some legal experience — enough to make the changes, and then blame Racine for them.) Because the will is now invalid, Matty inherits her husband’s entire estate.
No one questions that Racine was responsible, because it turns out that this is the second time he’s (supposedly) messed up a will. In addition to advancing the plot, the incident is supposed to make the audience realize that Racine was a really terrible lawyer.
Too bad for Racine he didn’t practice in California, though. Here, such things are to be expected of attorneys “of ordinary skill.”