Answer to Weekly Bar Question 04/07/08

(C) is the best response, because it identifies the added condition, of these four options, which will result in a violation of the Rule Against Perpetuities.  The reason is this:  If Heston made the conveyance during his life, there may be members of the class whose interest does not vest or fail within the "perpetuities period" - a life in being plus twenty-one years.  Say, for instance, that Heston makes the conveyance in 1989.  He has three children at the time.  In 1990, he has a fourth child, Farkus.  Since Farkus was born after the conveyance took place, he would not be a "life in being" for purposes of the Rule Against Perpetuities.  Farkus dies at age 16, in 2016, having just had a child.  That child would turn 21 in 2037.  Farkus's child's interest in Hilltop would make the conveyance to the grandchildren invalid, because his interest wouldn't vest until he turned 21 in 2037, which is more than a life in being plus twenty-one years since the conveyance took place, since his father, Farkus, wasn't a life in being in 1989.  This is the "after-born children" problem, and it's the reason why class gifts to grandchildren, to take effect when the grandchildren reach 21, are valid only in wills, not in conveyances.  Since C correctly identifies the circumstance which would make the class gift violate the Rule Against Perpetuities, it's the best response. 

(A) is not the best response, because the birth of a posthumous child would not change the application of the Rule Against Perpetuities.  The Rule Against Perpetuities requires that, in order to be valid, an interest must vest or fail within a life in being plus twenty-one years at the time the interest was created.  In fact, fetuses are considered a "life in being" for purposes of the Rule, and so you could say that there's a nine-month "grace period" for the Rule.  Option A does, though, imply the correct reasoning, which is, the grant here was valid only because it was in a will, not an inter vivos conveyance, since it's the possibility of after-born children to Heston that would invalidate the interest.  The fact still remains that Heston cannot parent any more children once he dies, and so any grandchildren he has must turn twenty-one within a life in being plus twenty-one years (the "life in being" being measured by Heston's children).  The fact that his wife is pregnant when he dies would not change this result, so A is not the best response. 

(B) is not the best response, because it misinterprets the facts, and, in any case, the inclusion of grandchildren whenever born would not create a violation of the Rule Against Perpetuities.  Heston did expressly include his after-born grandchildren, because he stated that he intended "to include all after-born grandchildren whenever born."  Thus, the inclusion of after-born grandchildren does not violate the Rule Against Perpetuities.  The Rule Against Perpetuities requires that, in order for an interest to be valid, the interest must vest or fail within a life in being plus twenty-one years.  Here, the "measuring lives" would be Heston's children.  Heston's will takes effect when he dies, and coincidentally, when he can have no more children.  Thus, Heston's grandchildren cannot turn twenty-one later than twenty-one years after his children die, because once his children die, they can't have any more children of their own.  Thus, when the grandchildren are born is irrelevant.  Since B misinterprets the facts and does not correctly apply the Rule Against Perpetuities, it's not the best response. 

(D) is not the best response, because Heston's having no grandchildren alive when he died would not make the grant violate the Rule Against Perpetuities.  In order for the provision to satisfy the Rule Against Perpetuities, all that's required is that all the interests vest or fail within a life in being plus twenty-one years after the provision takes effect.  The "measuring lives" for the purpose of this provision are Heston's children.  They physically cannot have children who turn twenty-one more than twenty-one years after they die, because once Heston's children die they can't have any more children.  However, it doesn't matter when the children are born vis-a-vis Heston's death, for purposes of the Rule Against Perpetuities.  Since D states otherwise, it's not the best response.