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Two Petty Perpetuity Puzzles
Published online by Cambridge University Press: 16 January 2009
Extract
The Perpetuities and Accumulations Act 1964 might have been devised to please examiners. The promise of the Attorney-General to the House of Commons, on the Second Reading of the Bill, that “there will be plenty of caviar for those who have the privilege of attending to these fascinating problems” has proved true, not only for those whom the Attorney-General had in mind, but for students too. Moreover, they have to dissect the statute without hope of assistance from the courts for many years to come; for the fact that the Act applies only to instruments taking effect after 15 July 1964, coupled with the “wait and see” rule, renders (validly) remote the likelihood of judicial decision on some of its more stimulating provisions.
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- Copyright © Cambridge Law Journal and Contributors 1969
References
1 H.C.Deb., 30 April 1964, col. 704; cf. col. 694.
2 See, in particular, that of Dr. J. H. C. Morris and Professor H. W. R. Wade (1964) 80 L.Q.R. 486.
3 They must, of course, satisfy also the requirements of s. 3 (4).
4 Morris and Wade (1964) 80 L.Q.R. at 501.
5 “(b) a person to whom or in whose favour the disposition was made, that is to say—
(i) in the case of a disposition to a class of persons, any member or potential member of the class.”
6 The writer is grateful to his colleague Mr. P. B. Fairest for enlightenment on this point.
7 A colleague has drawn the writer's attention to a further awkwardness in the subsection's wording. Where there is a gift “to the first grandchild of A” and A is alive but has no grandchildren at the time, not even A would be a life in being on a literal interpretation of s. 3 (5) (c); for none of his grandchildren, if subsequently born, would fall within sub-paras. (i) to (iv) of para. (b). The appropriate sub-paragraph would be (b) (ii) (“in the case of an individual disposition to a person taking only on certain conditions being satisfied, any person as to whom some of the conditions are satisfied and the remainder may in time be satisfied”); and the first grandchild to be born would satisfy all the conditions, not merely some of them. It is fair to add that neither the writer nor his colleague foresees any likelihood of such a literal interpretation.
8 If the eldest child had been aged 4 or older at A's death, then we should naturally continue to wait and see under s. 3, and it would only become necessary to resort to age-reduction if he died before reaching 25.
9 Megarry, and Wade, , Law of Real Property, 3rd ed. (London 1966), p. 243.Google Scholar
10 s. 3 (1).
11 Megarry and Wade, op. cit. p. 242.
12 It may still arise under section 3. If A's children are aged, say, 16, 2 and 1 at his death, we must go on waiting and seeing, and the eldest child may die before 25 but above the age to which a reduction is then made under section 4, whether it be 23 or 22.
13 s. 4 (1).
14 Megarry and Wade, op. cit. p. 243.
15 See Pearks v. Moseley (1880) 5 App.Cas. 714.
16 s. 3 (1).
17 If the youngest child does not die, it will become necessary to resort to s. 4, either at the very end of the wait-and-see period, or earlier if all the children capable of qualifying within the period die below the specified age. Cf. n. 18, infra.
18 If the age were left at 24 after the “wait and see” period had been exhausted, the possibility that the younger children would reach that age and thus qualify for the gift outside the perpetuity period would invalidate the gift. The only way to eliminate that possibility is by a further age-reduction, since there is no power at common law to exclude the younger children from the class, and the statutory power to do so under s. 4 (4) does not operate so long as the gift can be saved by age-reduction. (S. 4 (4) applies only where “apart from this subsection” the gift would be void.)