16

Inspired by this question, why might any corporation draft a legal document containing provisions that are random, arbitrary, and completely beyond their control?

In case the question is deleted, it had to do with Disney maintaining control over its districts "until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this declaration."

(I don't have access to the document quoted in the other question.)

The rule against perpetuity makes some sense from an estate planning perspective, (a just-borne heir would reach the age of majority to be able inherit property 21 years following a death) but what rationale is there for preventing an on-going legal entity from tying any or all of its legal documents directly to the continued existence of the entity itself?

4
  • 1
    Can you first tell us what Disney's 'districts' are? My lay guess would be that covered Disney's goods, chattels and whatever stuff and though I confess to being a layman, I also point out that in 60 years of listening, I've never heard 'districts' used in anything like that sense. Jun 16, 2023 at 22:27
  • 3
    @RobbieGoodwin: Probably a reference to the Central Florida Tourism Oversight District, formerly Reedy Creek Improvement District, which is a special political entity exercising control over the region in Florida where Disney World is located. There's an ongoing fight between the Disney company and the state of Florida over control of the district. Jun 17, 2023 at 0:42
  • 2
    And here I was, reading it as «last survivor of the descendants of King Charles III (King of England living as of the date of this declaration)», where it turn out to be «last survivor of the descendants, living as of the date of this declaration, of King Charles III (King of England)»
    – Ángel
    Jun 18, 2023 at 23:33

2 Answers 2

25

It’s a common law rule dating from the 17th to 19th centuries

Known as the rule against perpetuities “that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written.”

The rule has its origin in the Duke of Norfolk's Case of 1682. That case concerned Henry, 22nd Earl of Arundel, who had tried to create a shifting executory limitation so that some of his property would pass to his eldest son (who was mentally deficient) and then to his second son, and other property would pass to his second son, but then to his fourth son. The estate plan also included provisions for shifting property many generations later if certain conditions should occur.

When his second son, Henry, succeeded to his elder brother's property, he did not want to pass the other property to his younger brother, Charles. Charles sued to enforce his interest, and the court (in this instance, the House of Lords) held that such a shifting condition could not exist indefinitely. The judges believed that tying up property too long beyond the lives of people living at the time was wrong, although the exact period was not determined until another case, Cadell v. Palmer, 150 years later.

Historically, the rule was no longer than 21 years from the death of some person alive at the time the trust or estate was created. However, that person(s) must be limited and identifiable. Which led to the creation of Royal lives clauses. The descendants of British monarchs became popular because it’s easy to find out who they are, even many years after the fact, and that family tends to live a long time. Other popular choices, particularly in the United States, are the descendants of John D. Rockefeller or Joseph P. Kennedy.

This is often only one of the conditions for the end of the trust and becomes a “savings clause” to prevent violation of the rule if the other conditions are (or become) too far in the future.

The period has been changed or abolished by statute in many jurisdictions. For example, England and Wales has adopted a flat 125 year limit. As a state-based law, the United States is hugely variable.

Examples

For example, one of the businesses I run operates under a trust deed that says:

"The Vesting Date" means the first to occur of the following three dates namely:-

(i) Sixty years after the date of this Deed.

(ii) Twenty years after the date of the death of the last survivor of the lineal descendants of His late Majesty King George V born and living at the date hereof or,

(iii) The date (if any) which the Trustee shall in his discretion appoint as the distribution date of this settlement.

The deed was made in 1982, which partly explains its style and implicit sexism, but I suspect that the solicitor who drafted it has been using the clause about George V for a lot longer than that. As of today, there are 35 living people who fall into the definition, including Charles III (see if you can work out the others); since there are now less than 20 years to go until 60 years after the deed, the clause will never be relevant.

Another business operates under a deed made in 2022:

14.1 Termination date

The Trust shall be wound-up and terminate on the first to occur of:

a) the date which The Trustee with the written consent of the Leading Member Appointer determines; or

b) 80 years from the date of this deed unless a State law allows otherwise including South Australia.

Note that the reference to living people is gone. Also, note the specific reference to South Australia, a jurisdiction that has abolished the rule against perpetuities. So long as they don't change their law back, this trust is effectively perpetual. Finally, not how much easier this is to read and skips the implicit sexism; progress.

Why doesn’t it affect the property of ‘immortal’ entities like companies or governments?

Because, in theory, it isn’t dead people telling living people what they can do with the property.

While the organisation may be ‘eternal’ the people making decisions for that organisation aren’t - the directors and legislators/executives in charge today can decide what to do with the property. This includes having the capacity to rewrite the rules of the organisation. While it may be hard to change a company’s rules and very, very hard to change a country’s constitution, it isn’t impossible the way it is with a trust deed or a will.

Changing a deed or will too much can result in resettlemet; creating a new trust and usually crystalising tax obligations the delaying of which was often one of the motivations for the trust in the first place.

4
  • 1
    This looks like a great answer, thanks! I need a little time to digest before accepting anything though... Jun 16, 2023 at 16:18
  • @jcaron: I suppose you could really go for broke and try to use Sophia of Hannover, but apparently they're not really sure who all of her descendants are. I wonder how a court would deal with that problem.
    – Kevin
    Jun 18, 2023 at 2:21
  • 1
    @Kevin excellent question- why not ask it?
    – Dale M
    Jun 18, 2023 at 2:37
  • In addition to this answer: the reason royal lives clauses use "any of the descendants of (the current king/queen)" rather than (say) "the youngest person in the line of succession" is statistics. A single person might die young of a rare disease or a car accident; however, if you pick twenty affluent children, it is almost guaranteed that at least one of them will live until ~90.
    – KFK
    Jun 20, 2023 at 15:57
13

This is an effort to avoid the rules against perpetuities which immediately invalidates contracts that do not expire within the life of someone living at the time that the contract is entered into plus twenty-one years, in its most traditional historic version.

what rationale is there for preventing a legal entity from tying any or all of its legal documents directly to the existence of the entity itself?

Entities live forever, but the "dead hand" of people who wrote a contract, long, long ago, shouldn't bind people in the present.

2

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .