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Rule Against Perpetuities

posted Mar 18, 2013, 8:41 AM by Brenda Guynes

In the 1981 film (http://www.filmsite.org/filmnoir.html)  Body Heat (http://www.imdb.com/title/tt0082089/), directed by Lawrence Kasdan (http://www.imdb.com/name/nm0001410/), the character played by Kathleen Turner (http://www.imdb.com/name/nm0000678/) uses her smoldering sexuality and an arcane rule of common law to trick her attorney, William Hurt (http://www.imdb.com/name/nm.0000458/)  The arcane principal that she relies upon is the Rule Against Perpetuities (http://en.wikipedia.org/wiki/Rule_against_perpetuities).  The Rule is an aspect of law which we inherited from our British colonizers, along with much of the rest of common law (http://encyclopedia.thefreedictionary.com/Common+law).  The Rule Against Perpetuities has been the bane of existence of law students and young lawyers for generations because of its obscure purposes and complex phrasing.  I could argue that the Rule Against Perpetuities was the basis for many general practice attorneys choosing not to practice probate law and instead refer probate and trust cases to lawyers who concentrate their practice in this area.  Alas, the Rule Against Perpetuities has been repealed or partially repealed in most American jurisdictions.  Missouri repealed (http://www.moga.mo.gov/statutes/c400-499/4560000025.htm) its version ten years ago because the purpose was no longer being achieved by the rule and tax laws were achieving the original goals. 

Essentially, the purpose of the rule is to prevent control of wealth and property by people who have died long ago.  It is one aspect of a broader common law principal archaically known as prevention of restraints on alienation (http://encyclopedia.thefreedictionary.com/Restraints+on+alienation).  These types of laws seek to make sure that living people who own, occupy or oversee property have the ability to use and sell that property anyway they wish otherwise society suffers because property becomes unused and unusable as time passes and situations change. 

For example, in many families where property has passed down from one generation to the next, over the course of several years, the ownership of the family home has not followed the uses by the family and the occupants.  One or more members that own the property no longer live there, have died or have lost touch with the family.  These sorts of problems arise not only in wealthy families but also in families of more modest means whose principal asset is the family home.  After only one or two generations, the legal ownership of a home can be hopelessly confused such that correction of the pending issues requires the services of a probate and trust lawyer.  I find that I am often able to help such families at a cost less than the purchase of a new home but at a substantial cost.  I have talked on television (http://www.ksdk.com/video/default.aspx#/Attorney+answers+vital+questions+on+trusts+and+wills/47423527001) about a similar false economy when people attempt to save money with the internet and other form wills but generate much larger legal bills for their heirs.

The best course of action in preventing property from becoming entangled in legal confusion is to plan ahead.  It can often be difficult to choose amongst heirs but there are many ways which a skilled attorney can assist a property owner in transferring their wealth in ways that ensure their heirs benefit but does not restrict the families ability to use the property with legal entanglements.  Unfortunately, I find that a great many people attempt to address these issues themselves through simple, inexpensive means such as quit claim deeds and simple wills in order to avoid attorneys fees.  Matters of titling property are amongst the most complex areas of the law.  Frequently, inexpensive solutions generate much larger legal bills later than is saved by the attempted shortcuts. 

Even families who have had ancestors take ill advised shortcuts that complicated their problems, or created problems where there were none still have options.  I find that I am often able to correct these matters, admittedly with an expense, but still in a way that ensures continued use of the property in question and without property becoming a blight on neighbors or others with interest attached.  Of course you will need to catch me when I am not enjoying a classic film noir redux….

-Thomas Glick