The Descendants; Living Wills, Family Trusts, and the Rule Against Perpetuities

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 I have posted before 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.

The Movie the Descendants begins with the hospitalisation of a woman Joanie following a boating accident off Waikiki Beach. Now in a coma that Doctors determine is irreversible her living will instructs her husband Matt to remove life support. Their older daughter Alexandra returns home from boarding school, and Matt becomes a single parent to her and his younger daughter Scottie.

A Living Will (often referred to as an Advanced Care Directive) is a document stating the specific medical treatment that the patient does or does not wish to receive. Many jurisdictions enable a person to register a refusal to accept medical treatment or appoint another person to carry out their wishes.

In order to make a Living Will a person must have legal capacity, and must express in a clear and unambiguous way the medical treatment they wish to receive when medical technology might be required to keep you alive.

Importantly if you lack the capacity to make decisions about your medical treatment the person or persons you appoint as substitute decision-makers, family members and significant others must be informed with regard to your medical wishes

Matt is suddenly forced to manage his two difficult daughters, Scottie is angry and confused, Alexandra who has a troubled past, bad attitude and a grudge against her mother is just angry. Elizabeth’s impending death and the revelation of her past infidelity further trouble Matt.

Matt is a real estate lawyer and although he is a bit uncomfortable about admitting it (and tries to live a relatively middle-class life) is one of the descendants from the union between a white settler and a native Polynesian princess in the 1840’s. The family tree stretches back to the earliest white settlers in Hawaii.

As trustee for the family trust, whose principal asset is an unspoiled tract of land on Kauai, Matt is mindful that due to the rule against perpetuities the trust is expiring in seven years. He feels pressure from his cousins who want to cash out by selling the land that will make them all multimillionaires however Matt feels troubled that he might betray a 150-year-old legacy.

At the King family meeting, the majority of the cousins wish to sell the land, Matt decides against this and wants to look for a different solution to the problem posed by the rule against perpetuities. Several of the cousins tell a resolute Matt that they will take legal action if the property isn’t sold. Similarly how will Matt prevent the land being developed during the trusts final seven years?

If the cousins take action for breach of trust and Matt is found to have breached his trustee’s duties it would take a sizable amount in legal fees and delay any sale by the length of the case.