Rule of Perpetuity

[andyk74]

Hi,

I have a tricky case and would appreicate any views.

A woman's Will gives rights of occupation of her house to her 4 adult children
It then says after their deaths, a right of occuaption to grandchildren and then great grandchildren.
The clause is then ended with words to the effect that her purpose is to provide a home for generation to generation and not to be sold

Am I right this is a clear breach of the rule of perpetuity? If so what effect does it have on the trust created?
Does it end when the last of defined class dies or 125 years if first - and then forms part of residue estate?

then woman has now died - if we wish to amend this by deed of variation who needs to sign it?
thanks

[Anthony Nixon]

While I would need to look at the will and know all the circumstances to give a definite answer, I think you are probably right.

But the perpetuity period may be only 80 years. The 125 year period only applies if the will was actually made after 5 April 2010.

If this is the case then the income rights as specified in the will last during that 80 years (or, as you say, while any beneficiaries are alive) but the trusts then become invalid and the assets revert to the deceased's estate, probably following the intestacy rules.

On the face of it a deed of variation is not possible, because some of those potentially entitled have not been born. There may be ways out of the impasse by using powers of advancement and I will happily take a look at the will on a no obligation basis to see if anything can be done.

Anthony Nixon CTA TEP Solicitor
Partner, Thomas Eggar LLP, Southampton and Chichester
anthony.nixon@thomaseggar.com
023 8083 1224