Article on Rule Against Perpetuities in New York

Kyle G. Durante recently published an Article entitled, A Modern Guide to the Modifications of the Rule Against Perpetuities in New York, 32 Touro L. Rev. 947 (2016). Provided below is a summary of the Article:

The common law Rule Against Perpetuities (RAP) stems from the original English common law case, The Duke of Norfolk’s Case or the Doctrine of Perpetuities. The common law rule, as stated by John Chipman Gray, provides that “[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” The primary modifications New York has created include the alteration to the fertile octogenarian rule, addition of a savings provision for the reduction of age contingencies, removal of the unborn widow rule, and application of the RAP to commercial option contracts. These modifications to the common law rules have been beneficial to the evolution of RAP from its historic application to its modern necessity.

This Comment will explore RAP’s common law principles as well as the New York modifications of the remoteness of vesting and suspension of alienability applications. Section II of this Comment will delve into the original creation of the RAP as well as its common law application. Section III will explore New York’s codification of the common law rule. Section IV will probe into New York’s minor modifications of the common law rule in relation to the fertile octogenarian rule, the reduction of the age contingency savings provision, and the unborn widow rule. Section V will analyze RAP’s common law application to non-commercial option contracts as well as New York’s major modification applying the RAP to commercial option contracts. Finally, this Comment will conclude that New York’s modifications to the RAP have refined the common law RAP by preserving the underlying purpose of the RAP as well as the intent of grantors and testators.