- All potential measuring lives are killed off and the person born after the effective date cannot be a measuring life so we are left w/ a 21-year period
- d. Special Assumptions for Telling an Invalidating Story
- Any person alive on the effective date, regardless of age, can have children
- Any group of persons alive on the effective date can die together at anytime
- 9. Classic Trap: Age contingencies in excess of 21 years
- a. Provision in A’s will, “To my children, then to my grandchildren who reach age 25”
- Grandchild C born after effective date, other grandchild is killed less than four years after C is born (killing off the other grandkid that could affect the contingency)
- Cannot be determined whether C will reach age 25 w/in 21 years of his parent’s death
- b. To avoid this problem, name grandchild by name in the will, making them the validating life
- 10. Classic Trap: Gifts to Grandchildren of a person now living
- a. Gift in the testator’s will to “the children of A for their lifetimes, then to the grandchildren of A who reach the age of 21” and A is alive on the effective date
- Tries to control 3 generations, A to A’s grandchildren
- If A is dead on the effective date it is valid, only 2 generations controlled and A’s children become the validating lives and we will know whether they have kids
- b. Assume a child, C, is born to A after the effective date, and then assume A dies
- Any other children besides C who were alive on the effective date die as well
- c. Finally, assume C has a child (the grandchild of A) more than 21 years later
- Avoid by naming grandchildren specifically by name
- 11. Classic Trap: Irrevocable Trust vs. Will or Revocable Trust
- a. Provision in an irrevocable inter vivos trust that gives “life estate in A, then to the children of A, then to the grandchildren of A who reach 21” and assume the settlor of the trust is A
- Tries to control 3 generations, and another example of a gift to grandchildren of a person who is still alive
- b. Assume at effective date of instrument A has two children (B and C), and after the effective date, another child (D) is born [move 1]; Then assume A, B, and C are killed [move 2]
- c. Then, whether, D will have any children and whether any of them will live to the age of 21 cannot be determined within 21 years of death of other parties [move 3]
- For example, D could have a kid 25 years later
- 12. Classic Trap: Fertile Octogenarian
- a. Irrevocable inter vivos trust that gives “life estate in A, then to the children of A, then to the grandchildren of A who reach the age of 21”
- Variant of the 3-generation problem
- b. Now assume that A is a woman over 80 years old (or sterile dude), and the critical first move is to show A could have children after the effective date – RaP assumes anyone can have children
- Same as issue above, just with a fact against conventional wisdom (80 yr old having kids)
- Classic case bc the rule is based on a fact of life known to be false
- 13. Classic Trap: Unborn Widow/Widower
- a. Bequest in trust to pay income “to my daughter for life, then to my daughter’s widower for life, then to IU” – three generation issue
- Assumption here is that widower or widow may be someone who was not alive on the effective date of the instrument; “widow(er)” is an open term
- Avoid this by naming widow(er) specifically by name
- b. Daughter marries a person born after effective date of instrument
- Widower cannot be measuring life
- Contingency here is when the widower will die
- We cannot know whether this will happen within 21 years
- c. Invalid interest is the remainder to IU, not the interest of the widow