The Rule against perpetuities

Robert Crawley, 7th Earl of Grantham has a problem; he has no sons, and an “entail” keeps any of his three daughters from inheriting his great estate and mansion: Downton Abbey. Matthew Crawley, a distant cousin is Robert’s heir. Matthew will someday inherit both the earl’s title and his real estate, thanks to the entail.

An entail (“fee tail”) is basically a will that sets up a primogeniture system for real estate. The fee tail allowed a patriarch to keep his estate intact in the hands of one male heir thereby perpetuating his family-name, wealth and power through a series of male descendants. It was a form of trust whose trustees are replaced as they die allowing the trust to effectively continue indefinitely.

In England the succession often appeared to be seamless from patriarch to patriarch, due to the baptism of the eldest son and heir with his father’s Christian name for several generations.

A lord or other landholder leaves his house and land to his son “and the male heirs of his body.” It ensures that a single male descendant gets all the family’s real estate. Where the family has a noble title, the entail follows the title, so the same man gets the real estate and the lordship. In Downton Abbey Robert’s family has an entail, so Matthew gets the entire estate.

In general, the Rule against perpetuities at common law provides that an interest in real or personal property is void if it vests later than 21 years after the death of everyone who was alive (including unborn children) at the time the gift was created.

All State and Territory jurisdictions in Australia except South Australia have retained the Rule but have modified it in different ways by statute, mostly specifying a maximum perpetuity period of 80 years.

It is more accurately described as the rule against remoteness of vesting for it is not a rule against interests that last too long but rather against interests that vest too late. As we saw yesterday if a gift in a will violates the Rule against Perpetuities, the court will simply strike that gift and transfer the subject of the gift as if the will had not mentioned it.

England abolished entail by the Law of Property Act in 1925.

In Brideshead Revisited the entail ended with Lord Marchmain allowing him to leave his estate to his eldest daughter Julia bypassing his eldest son and presumptive heir. When asked if she would accept it Julia replied

‘Certainly. It’s papa’s to leave as he likes.’

In Downton Abbey catastrophe was averted when Robert’s eldest daughter Mary married Matthew, who subsequently died, but not before providing a son George – a new heir to the Earldom although via his Father and not his Maternal Grandfather.