Perpetuities Act


Published: 1995-02-14

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Perpetuities Act
PERPETUITIES [CH.114 – 1



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PERPETUITIES

CHAPTER 114

PERPETUITIES


LIST OF AUTHORISED PAGES
1 – 13 LRO 1/2006


ARRANGEMENT OF SECTIONS

SECTION

1. Short title.
2. Interpretation.
3. Validity dependent upon actual events.
4. When the perpetuity period begins to run.
5. Powers of appointment.
6. The perpetuity period.
7. The measuring lives.
8. Reduction of age.
9. Gift to a class.
10. Condition relating to death of surviving spouse.
11. Ulterior and dependent limitations.
12. Presumption and evidence to the age of procreation.
13. Cy-près at conclusion of perpetuity period.
14. Administrative powers of trustees.
15. Options relating to land.
16. Avoidance of contractual and other rights in cases of remoteness.
17. Possibilities of reverter, conditions, subsequent, exceptions and

reservations.
18. Non-charitable purpose trusts.
19. Application to the court for directions.
20. Application of Act.




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CHAPTER 114

PERPETUITIES
An Act to modify the law relating to the avoidance

of future interests in property on grounds of
remoteness.

[Commencement 14th February, 1995]
1. This Act may be cited as the Perpetuities Act.
2. In this Act —
“court” means the Supreme Court;
“disposition” includes the conferring of a power of

appointment and any other disposition of an
interest in or right over property, and references
to the interest disposed of shall be construed
accordingly;

“power of appointment” includes any discretionary
power to transfer a beneficial interest in
property without the furnishing of valuable
consideration;

“will” includes a codicil.
3. (1) Subject to subsections (2) and (3), a disposition

of a non-vested interest in property becomes void if the
interest disposed of fails to vest within the perpetuity period
as defined by section 6.

(2) Every disposition of a non-vested interest in
property shall be treated, until such time (if any) as it
becomes established that the vesting will not take place
within the perpetuity period, as if such disposition were not
subject to the rule against perpetuities; and its becoming so
established shall not affect the validity of anything
previously done in relation to the interest disposed of by
way of advancement; application of intermediate income or
otherwise.

(3) Subsection (1) shall not apply —
(a) to charitable trusts;
(b) to the trusts of any fund registered under the

Superannuation and Other Trust Funds (Validation)
Act.

3 of 1995
16 of 2004

Short title.

Interpretation.

Validity
dependent upon
actual events.

5 of 1967.

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4. The perpetuity period begins to run —
(a) in the case of an instrument inter vivos creating

interests in property, other than those created by
an instrument described in paragraph (b), at the
effective date of the instrument;

(b) in the case of an instrument inter vivos creating
interests in property which are revocable or
amendable in the sole discretion of the grantor,
at the time at which such right of revocation or
amendment terminates;

(c) in the case of interests in property created by
will, at the date of the death of the testator;

(d) in the case of an interest created in exercise of a
general power of appointment, at the same date
as would be applicable if the instrument
exercising the general power were an instrument
creating interests in property in accordance with
paragraphs (a) and (b);

(e) in the case of an interest created in the exercise
of a special power of appointment, at the date on
which the period began to run in respect of the
instrument creating such special power.

5. (1) For the purposes of the rule against
perpetuities, a power of appointment shall be treated as a
special power unless —

(a) in the instrument creating the power it is
expressed to be exercisable by one person only;
and

(b) it could, at all times during its currency when
that person is of full age and capacity, be
exercised by him so as immediately to transfer
to himself the whole of the interest governed by
the power without the consent of any other
person or compliance with any other condition,
not being a formal condition relating only to the
mode of the exercise of the power:

Provided that for the purpose of determining whether
a disposition made under a power of appointment
exercisable by will only is void for remoteness, the power
shall be treated as a general power where it could have
fallen to be so treated if exercisable by deed.

When the
perpetuity period
begins to run.

Powers of
appointment.

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(2) Where a disposition consists of the creation of —
(a) a general power of appointment, such power

becomes void if it does not become exercisable
within the perpetuity period;

(b) a special power of appointment, such power
becomes void in so far as it is not fully exercised
within the perpetuity period.

(3) Every disposition consisting of the creation of —
(a) a general power of appointment shall be treated,

until such time (if any) as it becomes established
that the power will not become exercisable
within the perpetuity period, as if the disposition
were not subject to the rule against perpetuities;

(b) a special power of appointment shall be treated,
until such time (if any) as it becomes established
that the power has not been fully exercised
within the period, as if the disposition were not
subject to the rule against perpetuities.

(4) Where an appointment is made in the exercise of
a general or a special power of appointment, such
appointment shall be treated, until such time, (if any) as it
becomes established that the vesting of the interest created
by such appointment will not take place or has not taken
place within the perpetuity period, as if such appointment
were not subject to the rule against perpetuities, and its
becoming so established shall not affect the validity of
anything previously done in relation to the interest created
by the appointment by way of advancement, application of
intermediate income or otherwise.

6. (1) Subject to subsections (2) and (4), and to
sections 7, 15(3) and 18, the perpetuity period shall be a
period measured by the lives of persons alive at the time
when the perpetuity period begins to run in respect of any
instrument creating interests in property (hereinafter called
the “measuring lives”) plus twenty-one years.

(2) Where an instrument by which any disposition is
made so provides, the perpetuity period applicable to the
disposition, instead of being any other period, shall be a
period equal to such number of years, not exceeding one
hundred and fifty, as is specified in the instrument:

The perpetuity
period.

16 of 2004.

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Provided that this subsection shall not apply where
the disposition is made in exercise of a special power of
appointment, but where a period is specified under this
subsection in the instrument creating such special power,
that period shall apply in relation to any appointment
which is made in exercise of the power.

(3) For the purposes of subsection (1) and of
sections 3, 5(2) and 7 a person en ventre sa mère but
subsequently born alive shall be treated as a person who
was alive at the relevant time.

(4) Where no lives are applicable under subsection
(1) and no period of years is specified under subsection (2),
the perpetuity period shall be a period of one hundred and
fifty years.

7. (1) Subject to subsection (3), where the
perpetuity period applicable to a disposition is that laid
down in section 6(1), the measuring lives shall be such of
the following persons as are alive and identifiable at the
time when the perpetuity period relevant to the disposition
begins to run —

(a) such persons as may be expressly selected in the
instrument making the disposition as being the
measuring lives for the purposes of the
disposition;

(b) the person or persons by whom the disposition
was made;

(c) any person to whom or in whose favour the
disposition was made, that is to say —

(i) in the case of a disposition to a class of
persons, any member or potential member
of the class;

(ii) in the case of an individual disposition to a
person taking only on certain conditions
being satisfied, any person as to whom
some of the conditions are satisfied and
the remainder may in time be satisfied;

(iii) in the case of a disposition made in exercise
of a special power of appointment —
(A) the donee of the power;
(B) where such power is exercisable in

favour of members or a class, any
member or potential member of the
class; and

16 of 2004.

The measuring
lives.

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(C) where such power is exercisable in
favour of one person only, that
person, or, where the object of the
power is ascertainable only on
certain conditions being satisfied,
any person as to whom some of the
conditions are satisfied and the others
may in time be satisfied;

(d) a person having a child or grandchild within
paragraph (c) or any of whose children or
grandchildren, if subsequently born, would, by
virtue of his or her descent, fall within that
paragraph;

(e) any person during whose life or upon whose
death, whether as an individual or as the
survivor of a group of persons, or on the failure
or determination of where prior interest the
disposition is expressly limited to take effect,
and any parent or grandparent of such person:

Provided that only those lives as are within paragraph
(a) shall be the measuring lives for the purposes of a
disposition if the settlor or testator so manifests his
intention.

(2) Where the question relates to the validity of a
general or special power of appointment or of an option the
measuring lives are the person or persons by whom the
disposition was made and the person or persons upon
whom such power or option is conferred.

(3) Where the ascertainment of the date of death of
the survivor of the measuring lives, whether because the
number is large or for any other reason is not reasonably
practicable, viewed from the date on which the perpetuity
period begins to run in respect of the disposition, the
measuring lives applicable to any disposition shall be
reduced, category by category, within subsection (1) by the
exclusion of all the lives in that category which makes such
ascertainment impracticable.

(4) Where an application is made to the court under
section 19 for a determination of the measuring lives
applicable to a disposition, the onus of establishing that the
lives in any particular category are ascertainable shall be
upon the party so asserting.

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8. (1) Where the vesting of a disposition in favour
of any person or persons is postponed until the attainment
by such person or persons of an age in excess of twenty-
one years and it becomes apparent at any time that —

(a) the disposition, in respect of any one or more of
such persons would, apart from this section, vest
outside the perpetuity period; but

(b) it would not so vest if the specified age had been
twenty-one years,

the disposition shall be treated for all purposes as if,
instead of being limited by reference to the age in fact
specified it had been limited, in respect of the separate
interest or share of each such person or persons, by
reference to the age nearest that age which would, if
specified instead, have allowed the disposition to such
person to vest within the period.

(2) Subsection (1) shall be construed so as to allow
the age to be reduced only in respect of any person whose
interest would otherwise vest outside the perpetuity period;
and any such reduction in respect of a disposition in favour
of one such person shall not, by reason only of such
reduction, effect the reduction of the age of vesting in
respect of any other such person.

(3) Where in the case of any disposition different
ages exceeding twenty-one years are specified in relation
to different persons —

(a) the reference in paragraph (b) of subsection (1)
to the specified age shall be construed as a
reference to all the specified ages; and

(b) that subsection shall operate to reduce each such
age so far as is necessary, but not below the age
of twenty-one years, to allow the disposition to
vest within the period.

9. Where, subject to section 8, in the case of a gift
to a class, the interest of one or more members of the class
vests during the perpetuity period, but either —

(a) it becomes established that the interests of
another or other members will not vest within
the perpetuity period; or

(b) the interests of such other member or members
do not vest within such period,

Reduction of age.

Gift to a class.

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the person or persons described in paragraphs (a) and (b)
shall be deemed for all the purposes of the disposition to be
excluded from the class.

10. Where a disposition is limited by reference to
the time of death of the survivor of a person in being at the
commencement of the perpetuity period and any spouse of
that person, and that time has not arrived at the end of the
perpetuity period, the disposition shall be treated for all
purposes as if it had instead been limited by reference to
the time immediately before the end of that period.

11. (1) Any rule of the common law to the effect
that an interest is invalid by reason only of the fact that it is
ulterior to and dependent upon a prior interest which is
void for perpetuity is hereby abolished.

(2) The vesting of such ulterior interest shall not be
prevented from being accelerated on the failure of the prior
interest by reason only that the prior interest fails to vest
within the perpetuity period.

12. (1) Where any question arises —
(a) respecting the rule against perpetuities;
(b) in relation to the closing of a class;
(c) as to the time at which payments may be made

from a trust;
(d) in relation to the termination of a trust or a

period of accumulation; or
(e) for any other like reason,

as to the ability of a person to have a child at some future
time, then subject to subsection (2), it shall conclusively be
presumed that a male is capable of procreating a child at
the age of fourteen years or over, but not under that age,
not after death, and that a female can conceive, and
subsequently bear a child at the age of twelve years but not
under that age or over the age of fifty-five years.

(2) In the case of a living person evidence may be
given to show that such person, although within the ages
laid down in subsection (1) is incapable of procreating or
conceiving a child at the time in question.

(3) Where any such question is decided by treating a
person as unable to reproduce at a particular time and he or
she does so, the court may make such order as it thinks


Condition
relating to death
of surviving
spouse.

Ulterior and
dependent
limitations.

Presumption and
evidence to the
age of
procreation.

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fit for placing the persons interested in the property which
is the subject of such decision, so far as may be just, in the
position such persons would have held if the question had
not been so decided.

(4) The foregoing provisions of this section (except
subsection (2)) shall apply in relation to the possibility that
a person will become the parent of a child by adoption,
legitimation or other means as they apply to his or her
ability at that time to procreate or conceive a child.

13. (1) Where it has become apparent that, apart
from the provisions of this section, any disposition would
be void solely on the ground that it infringes the rule
against perpetuities, and where the general intention
originally governing the disposition can be ascertained in
accordance with the normal principles of interpretation of
instruments and the rules of evidence, the disposition may,
on application to the court by an interested person, be
varied so as to give effect as far as possible to the general
intention of the settlor or testator within the limits of the
rule against perpetuities.

(2) Subsection (1) shall not apply where the
disposition of the property has been the subject of a valid
compromise.

14. The rule against perpetuities shall not operate to
invalidate a power conferred on trustees or other persons to
sell, lease, exchange or otherwise dispose of any property
for full consideration, or to do any other act in the
administration (as opposed to the distribution) of any
property, and shall not prevent the payment to trustees or
other persons of reasonable remuneration for their services.

15. (1) The rule against perpetuities shall not apply
to a disposition consisting of the conferring of an option to
acquire for valuable consideration an interest reversionary
(whether directly or indirectly) on the term of a lease if —

(a) the option is exercisable only by the lessee or his
successors in title; and

(b) it causes to be exercisable at or before the
expiration of one year following the determination
of the lease.

Cy-près at
conclusion of
perpetuity
period.

Administrative
powers of
trustees.

Options relating
to land.

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(2) Subsection (1) shall apply in relation to an
agreement for a lease as it applies in relation to a lease, and
“lessee” shall be construed accordingly.

(3) Subject to subsection (4), in the case of a
disposition consisting of the conferring of an option to
acquire for valuable consideration any interest in land, the
perpetuity period under the rule against perpetuities shall
be twenty-one years, and section 6 of this Act shall not
apply.

(4) Subsection (3) shall not apply to a right of pre-
emption conferred on a public body in respect of land used
or to be used for religious purposes where the right
becomes exercisable only if the land ceases to be used for
such purposes.

16. Where a disposition inter vivos would fall to be
treated as void for remoteness if the rights and duties
thereunder were capable of transmission to persons other
than the original parties and had been so transmitted, it
shall be treated as void as between the person by whom it
was made and the person to whom or in whose favour it
was made or any successor of his, and no remedy shall lie
in contract or otherwise for giving effect to it on making
restitution for its lack of effect.

17. (1) In the case of —
(a) a possibility of reverter on the determination of a

determinable fee simple; or
(b) a possibility of a resulting trust on the

determination of any other determinable interest in
property,

the rule against perpetuities shall apply in relation to the
provision causing the interest to be determinable as it
would apply if that provision were expressed in the form of
a condition subsequent giving rise, on breach thereof, to a
right of re-entry or an equivalent right in the case of
property other than land, and where the provision falls to
be treated as void for remoteness the determinable interest
shall become an absolute interest.

(2) Where a disposition is subject to any such
provision, or to any such condition subsequent, or to any
exception or reservation, the disposition shall be


Avoidance of
contractual and
other rights in
cases of
remoteness.

Possibilities of
reverter,
conditions
subsequent,
exceptions and
reservations.

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treated for the purposes of this Act as including a separate
disposition of any rights arising by virtue of the provision,
condition subsequent, exception or reservation.

18. (1) Nothing in this Act shall affect the operation
of any rule of law rendering void, for reasons other than
failure to comply with the rule against perpetuities, certain
dispositions under which property is to be applied for
purposes which are not charitable or for the benefit of
corporations which are not charities.

(2) Any such trust, if valid under the general law
apart from the rule against perpetuities, shall be valid for a
period of one hundred and fifty years only.

(3) Any such trust which is in existence at the date
of the commencement of this Act shall continue for either
the period for which it would continue if this Act had not
been passed, or for a period of one hundred and fifty years
from the date of the commencement of this Act, whichever
period is the shorter.

19. An executor or a trustee of any property or any
person interested therein, or in the validity or invalidity of
an interest in that property may apply to the court for the
opinion, advice or direction of the court with respect to the
following matters —

(a) the construction of the will or trust instrument;
(b) a determination of the persons who are

measuring lives for the purposes of the
disposition;

(c) whether a person who is a measuring life shall
be presumed dead;

(d) whether, prior to the determination of the
perpetuity period governing the disposition, any
interest shall be treated as incapable of vesting
during that period;

(e) at the conclusion of the perpetuity period, for the
variation of the terms of the will or trust
instrument in accordance with section 13;

(f) any other matter on which such application
could properly be made to the court according to
current practice as if this Act had not been
passed.

Non-charitable
purpose trusts.

16 of 2004.

16 of 2004.

Application to
the court for
directions.

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20. (1) Subject to subsection (2), the provisions of
this Act shall apply in relation to instruments in respect of
which, in accordance with section 4, the perpetuity period
begins to run after the commencement of this Act, and in
the case of an instrument made in the exercise of a special
power of appointment shall apply, in accordance with
section 4(e), only where the instrument creating the power
takes effect after such commencement.

(2)
(a) Section 5(1) shall apply to instruments coming

into effect both before and after the
commencement of this Act to determine, for the
purpose of the application of the rule against
perpetuities, the distinction between general and
special powers of appointment;

(b) section 14 shall apply for the purpose of
enabling a power to be exercised at any time
after the commencement of this Act
notwithstanding that the power is conferred by
an instrument which took effect before that
commencement;

(c) section 12(1)(b), (c), (d) and (e) shall apply to
instruments coming into effect both before and
after the commencement of this Act, but shall
not apply so as to affect any questions which
have been determined, by litigation or
compromise or otherwise, before the
commencement of this Act;

(d) section 18 shall apply so as to terminate, after a
period of one hundred and fifty years, non-
charitable purpose trusts, whether created before
or after the commencement of this Act.

(3) This Act shall apply in relation to a disposition
made otherwise than by an instrument as if the disposition
had been contained in an instrument taking effect when the
disposition was made.

(4) This Act binds the Crown.

Application of
Act.

16 of 2004.