Perpetuities Act 1964

1: Short Title
This Act may be cited as the Perpetuities Act 1964.
2: Interpretation
1: In this Act, unless the context otherwise requires,— disposition in being en ventre sa mere instrument issue power of appointment property will
2: For the purposes of this Act a disposition contained in a will shall be deemed to be made at the death of the testator.
3: For the purposes of this Act a person shall be treated as a member of a class if in his case all the conditions identifying a member of the class are satisfied, and shall be treated as a potential member if in his case only one or some of those conditions are satisfied but there is a possibility that the remainder will in time be satisfied. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 4 (WA); Perpetuities and Accumulations Act 1964 s 15(2), (3) (UK)
3: Act and rule against perpetuities to bind the Crown
This Act and the rule against perpetuities shall bind the Crown except in respect of dispositions of property made by the Crown. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 3(2) (WA); Perpetuities and Accumulations Act 1964 s 15(7) (UK)
4: Application of Act
1: Except where otherwise expressly provided in this Act, every provision of this Act,—
a: in so far as it applies to wills, shall apply only to the wills of testators who die after the commencement of this Act; and
b: in so far as it applies to instruments other than wills, shall apply only to instruments executed after the commencement of this Act.
2: Where a provision of this Act so applies to a will or other instrument that exercises a power of appointment, that provision shall apply in relation to that exercise, whether or not it applies to the will or other instrument creating the power.
3: All wills of testators who have died before the commencement of this Act, and all other instruments executed before the commencement of this Act, shall, except where otherwise expressly provided in this Act, be governed by the enactments and rules of law which would have applied to them if this Act had not been passed.
4: 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 other than a will executed when the disposition was made. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 3(1) (WA); Perpetuities and Accumulations Act 1964 s 15(5), (6) (UK)
5: Powers of appointment
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 1 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 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 invalid as infringing the rule against perpetuities, the power shall be treated as a general power where it would have fallen to be so treated if exercisable by deed. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 16 (WA); Perpetuities and Accumulations Act 1964 s 7 (UK)
6: Power to specify perpetuity period
1: Subject to subsection (2), where the instrument by which any disposition is made so provides, the perpetuity period applicable to the disposition under the rule against perpetuities, instead of being of any other duration, shall be such period not exceeding 80 years as is specified in the instrument as the perpetuity period applicable to the disposition
2: The perpetuity period applicable to any power of appointment may be so specified under this section either in the instrument creating the power of appointment or (subject to the terms of the power) in the instrument made in exercise of the power of appointment.
3: In the case of a disposition in an instrument made in exercise of a special power of appointment, the period specified as aforesaid shall run from the date of the creation of the power, and in all other cases shall run from the time when the instrument comes into operation.
4: Law Reform (Property, Perpetuities, and Succession) Act 1962 s 5 (WA); Perpetuities and Accumulations Act 1964 s 1 (UK) Section 6(1) amended 20 October 1966 section 2(1)﻿(a) Perpetuities Amendment Act 1966 Section 6(4) repealed 20 October 1966 section 2(1)﻿(b) Perpetuities Amendment Act 1966
7: Presumptions and evidence as to future parenthood
1: This section shall apply whenever it becomes relevant to inquire whether any person is or at any relevant date was or will be capable of having a child, if—
a: the inquiry is necessary for the purpose of determining the rights of any person to put an end to a trust or accumulation or to accelerate the vesting in possession of any interest, whether (in the case of a will) the testator has died or dies before or after the commencement of this Act or (in the case of any other instrument) it was made before or after the commencement of this Act; or
b: in any other case where this paragraph applies in accordance with section 4
2: Where this section applies, there shall be a presumption, rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision, but not subsequently, that—
a: a woman who has attained the age of 55 years is incapable of having a child and will not subsequently have a child; and
b: a male or female who has not attained the age of 12 years is incapable of having a child while under that age.
3: Where this section applies, evidence that a male or female of any age is or at a relevant date was or will be incapable of having a child shall be admissible in proceedings in order to establish that incapacity, and the court may accept any such evidence of a high degree of improbability of having a child as it thinks proper as establishing the incapacity.
4: Where there is an instrument to which this subsection applies in accordance with section 4 High Court provided that, if a disposition that is not itself invalid as infringing the rule against perpetuities confers upon a child who is born to a parent at a time when any such court has treated the parent as unable or unlikely to have a child, or upon the husband or wife or civil union partner or de facto partner or civil union partner or de facto partner
5: In the foregoing provisions of this section references to having a child are references to begetting or giving birth to a child; but (except as provided in subsection (6)) those provisions, except subsection (3), shall also apply in relation to the possibility that a person may at any time have or have had a child by adoption, legitimation, or other means: provided that, in relation to that possibility, subsection (2) shall be read as if the words rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision, but not subsequently
6: The foregoing provisions of this section, so far as they would otherwise apply in relation to the possibility that a person will at any future time have a child by legitimation, shall not apply in the case of any person if it is established that the person has had an illegitimate child who has not been adopted by some other person and that the child and both its parents are living, unless the court is satisfied that there is a high degree of improbability that the child will be legitimated. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 6 (WA); Perpetuities and Accumulations Act 1964 ss 2, 14 (UK) Section 7(4) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 7(4) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005
8: Necessity to wait and see
1: Where, apart from the provisions of this section, a disposition would be invalid as infringing the rule against perpetuities, the disposition shall be treated, until such time (if any) as it becomes certain that the vesting must occur, if at all, after the end of the perpetuity period, as if the disposition were not invalid as infringing the rule against perpetuities; and its becoming so certain 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.
2: Where, apart from the said provisions, a disposition consisting of the conferring of a general power of appointment would be invalid as infringing the rule against perpetuities, the disposition shall be treated, until such time (if any) as it becomes certain that the power will not be exercisable within the perpetuity period, as if the disposition were not invalid as infringing the rule against perpetuities.
3: Where, apart from the said provisions, a disposition consisting of the conferring of any power, option, or other right would be invalid as infringing the rule against perpetuities, the disposition shall be treated as regards any exercise of the right within the perpetuity period as if it were not so invalid and, subject to the said provisions, shall be treated as invalid as infringing the rule against perpetuities only if and so far as the right is not fully exercised within that period.
4: Where any of the foregoing provisions of this section applies to a disposition and the duration of the perpetuity period is not determined by virtue of section 6
a: where any persons falling within subsection (5) are individuals in being and ascertainable at the commencement of the perpetuity period, the perpetuity period shall be the period expiring 21 years after the death of the survivor of them, and no regard shall be had to any other lives, but so that the lives of any description of persons falling within paragraph (b) or paragraph (c) of that subsection shall be disregarded if the number of persons of that description is such as to render it impracticable to ascertain the date of death of the survivor:
b: when there are no lives under paragraph (a), the period shall be 21 years.
5: The said persons shall be as follows:
a: the person by whom the disposition was made:
b: a 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 only one or some of the conditions are satisfied and the remainder may in time be satisfied:
iii: in the case of a disposition conferring a special power of appointment exercisable in favour of members of a class, any member or potential member of the class:
iv: in the case of a disposition conferring a special power of appointment exercisable in favour of 1 person only, that person or, where the object of the power is ascertainable only on certain conditions being satisfied, any person as to whom only one or some of the conditions are satisfied and the remainder may in time be satisfied:
v: in the case of any power, option, or other right, the person on whom the right is conferred:
c: a person having a child or grandchild who falls within subparagraphs (i) to (iv) of paragraph (b), or any of whose children or grandchildren, if subsequently born, would by virtue of his or her descent fall within those subparagraphs:
d: any person on the failure or determination of whose prior interest the disposition is limited to take effect. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 7 (WA); Perpetuities and Accumulations Act 1964 s 3 (UK) Cy-pres modifications of dispositions
9: Reduction of age and exclusion of class members to avoid remoteness
1: Where a disposition is limited by reference to the attainment by any person or persons of a specified age exceeding 21 years, and it is apparent at the time the disposition is made or becomes apparent at a subsequent time—
a: that the disposition would, apart from this section, be invalid as infringing the rule against perpetuities, but
b: that it would not be so invalid if the specified age had been 21 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 by reference to the age nearest to the specified age which would, if specified instead, have prevented the disposition from being so invalid.
2: Where in the case of any disposition different ages exceeding 21 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 to save the disposition from being invalid as infringing the rule against perpetuities.
3: Where it is apparent at the time when any disposition is made or becomes apparent at any subsequent time that, apart from this subsection, the inclusion of any persons, being potential members of a class or unborn persons who at birth would become members or potential members of the class, prevents the foregoing provisions of this section from operating to save a disposition from being invalid as infringing the rule against perpetuities, those persons shall thenceforth be deemed for all the purposes of the disposition to be excluded from the class, and the said provisions shall thenceforth have effect accordingly.
4: Where, in the case of a disposition to which subsection (3) does not apply, it is apparent at the time the disposition is made or becomes apparent at a subsequent time that, apart from this subsection, the inclusion of any persons, being potential members of a class or unborn persons who at birth would become members or potential members of a class, would cause the disposition to be treated as invalid as infringing the rule against perpetuities, those persons shall, unless their exclusion would exhaust the class, thenceforth be deemed for all the purposes of the disposition to be excluded from the class.
5: Where this section has effect in relation to a disposition to which section 8
6: Section 25 provided that the repeal of that section shall not restrict the operation of subsection (3) of section 4 Perpetuities and Accumulations Act 1964 s 4 (UK)
10: Cy-pres
1: Subject to the provisions of this section, where it has become apparent that, apart from the provisions of this section, any disposition (whether made before or after the commencement of this Act) would be invalid solely on the ground that it infringes the rule against perpetuities, and where the general intentions originally governing the disposition can be ascertained from the instrument governing the disposition or (where there is no such instrument) from the terms and scheme of the disposition, the disposition shall be reformed so as to give effect, if possible and as far as possible, to those general intentions within the limits permitted under the rule against perpetuities.
2: No disposition of any property that was made before the commencement of this Act shall be so reformed—
a: if the disposition has been declared invalid before the commencement of this Act by any order or judgment made or given in any legal proceedings; or
b: if any property comprised in the disposition has, before the commencement of this Act, been paid or transferred to, or applied for the benefit of, or set apart for, the persons entitled by reason of the invalidity of the disposition; or
c: if the person who made the disposition of the property while living and of full capacity has, before 1 January 1967, and whether before or after the commencement of this Act, elected in accordance with subsection (8) to accept the property under a resulting trust in his favour; or
d: so as to prejudice any person who has, before the commencement of this Act, reasonably so altered his position in reliance on the invalidity of the disposition that, in the opinion of the High Court
3: Where it is possible that any disposition made after the commencement of this section would, apart from the provisions of this section, become invalid solely on the ground that it infringes the rule against perpetuities, and where (if the disposition subsequently became invalid) it would have to be reformed in accordance with subsection (1), the disposition may be reformed under this section before that subsection applies to it, if—
a: the reformation would not prejudice any person who could possibly take under the disposition if it were not reformed and it proved to be valid; or
b: every person who could possibly be prejudiced by the reformation consents to it.
4: In every case where the reformation of a disposition of any property is required or permitted under this section,—
a: if the disposition was made before the commencement of this Act, and it has become apparent that the person who made the disposition of the property has become entitled to it under a resulting trust, or that he or his personal representative will become so entitled to it,—
i: the reformation may be made by that person executing, before 1 January 1967, a deed specifying such alterations to the disposition as are necessary to provide for its reformation in accordance with the provisions of this section; or
ii: the reformation may be made, on or after the last-mentioned date or before that date if the person has died or is for the time being of unsound mind, by the High Court
b: if paragraph (a) does not apply to the disposition, the reformation may be made by the High Court
5: Where a disposition made before the commencement of this Act is reformed under this section, in determining the validity of the reformed disposition, regard may be had to events and circumstances which have occurred or exist at the date of the reformation.
6: In any case where the trustees of property comprised in any disposition have become aware that the disposition requires to be reformed, it shall be their duty to take all reasonable steps that may be necessary to secure the reformation of the disposition.
7: Where a disposition is reformed in accordance with this section,—
a: the perpetuity period shall run from the date of the original disposition:
b: except as otherwise provided in this Act, the disposition as reformed shall be governed by the enactments and rules of law which would have applied to it if the reformed disposition had been made at the time of the original one:
c: subject to the foregoing provisions of this section, the reformation shall be deemed to have had effect as from the making of the disposition; and all consequences (including revenue consequences) shall follow as if the reformed disposition had been made at the time of and instead of the original one.
8: For the purposes of this section, a person who is entitled to elect to accept any property under a resulting trust may—
a: declare his intention to do so by deed; or
b: manifest his intention to do so by—
i: accepting a transfer or payment of the property or any part thereof from the trustees of the property; or
ii: otherwise dealing with the property or any part thereof as his own property.
9: No election which is not so declared or manifested before 1 January 1967 shall have any effect for the purposes of paragraph (c) of subsection (2).
10: On the reformation under this section of a disposition in a will of a testator who dies after the commencement of this Act, or of a disposition in any other instrument executed after the commencement of this Act, the perpetuity period in respect of that disposition may be specified under section 6 Section 10(2)﻿(d) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 10(4)﻿(a)﻿(ii) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 10(4)﻿(b) amended 1 April 1980 section 12 Judicature Amendment Act 1979
11: Restrictions on acceptance of resulting trust
1: In the case of any disposition made before the commencement of this Act which is capable of reformation under section 10 High Court
2: Upon any such direction being given by the High Court
3: At the time of giving any such direction or at any subsequent time the High Court section 10 section 10
4: An application to the High Court Section 11(1) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 11(2) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 11(3) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 11(4) amended 1 April 1980 section 12 Judicature Amendment Act 1979
12: Previous
cy-pres In any case where, before the commencement of this Act, it has become apparent that any disposition would be invalid solely on the ground that it infringes the rule against perpetuities, or doubts have arisen as to whether any disposition might be invalid solely on that ground, if within 6 years before the commencement of this Act the property has been resettled to carry into effect the general intentions originally governing the disposition as those general intentions appeared from the instrument governing the disposition or (where there was no such instrument) from the terms and scheme of the disposition, the provisions of paragraph (c) of subsection (7) of section 10 Miscellaneous provisions affecting rule against perpetuities
13: Unborn
husband, wife, or civil union partner The widow, widower, or surviving civil union partner
a: a disposition in favour of that widow, widower, or surviving civil union partner
b: a disposition in favour of a charity which attains, or of a person who attains, or of a class the members of which attain, according to the terms of the disposition, a vested interest on or after the death of the survivor of the said person who is a life in being and that widow, widower, or surviving civil union partner widow, widower, or surviving civil union partner Law Reform (Property, Perpetuities, and Succession) Act 1962 s 12 (WA); Perpetuities and Accumulations Act 1964 s 5 (UK) Section 13 heading amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 13 amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 13(a) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 13(b) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005
14: Saving and acceleration of expectant interests
A disposition shall not be treated as invalid as infringing the rule against perpetuities by reason only that the interest disposed of is ulterior to and dependent upon an interest under a disposition which is so invalid, and the vesting of an interest shall not be prevented from being accelerated on the failure of a prior interest by reason only that the failure arises because of remoteness. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 13 (WA); Perpetuities and Accumulations Act 1964 s 6 (UK)
15: Rule of remorseless construction abolished
Where a court is construing a will or other instrument, whether made before or after the commencement of this Act, and the will or instrument makes a disposition of any property, the court may have regard to the fact that, while under one possible construction the disposition would or might be void as infringing the rule against perpetuities, under another possible construction it would or might be valid; and, in considering which of those constructions is to be preferred, the court may take into account that the maker thereof would probably have intended the construction under which the disposition would be valid.
16: Administrative powers of trustees
1: The rule against perpetuities shall not operate, and shall be deemed never to have operated, to invalidate a power conferred on trustees or other persons to sell, lease, exchange, or otherwise dispose of any property for valuable consideration, or to do any other act in the administration (as distinct from the distribution) of any property, and shall not prevent, and shall be deemed never to have prevented, the payment to trustees or other persons of reasonable remuneration for their services.
2: Subsection (1) shall not—
a: render any trustee or other person liable for any acts done before the commencement of this Act for which the trustee or person would not have been liable if this Act had not been passed; or
b: enable any trustee or person to recover any money distributed or paid under any trust, if he could not have recovered that money had that subsection not been enacted. Perpetuities and Accumulations Act 1964 s 8 (UK)
17: Options relating to property
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 its or his successors in title; and
b: it ceases to be exercisable at or before the expiration of 1 year following the determination of the lease.
2: Subsection (1) shall apply in relation to an agreement for a lease as it applies in relation to a lease, and the term lessee
3: The rule against perpetuities shall not apply to a disposition consisting of the conferring of an option to acquire any property for valuable consideration, if the option is exercised within 21 years after the date on which the instrument conferring the option takes effect, or if—
a: the option is conferred by an instrument which provides for the settlement upon trust of assets comprising or including the property; and
b: the option is exercised at or before the expiration of 1 year after the first point of time when,—
i: in accordance with the settlement, all interests in remainder in the property that vest within the perpetuity period have vested and all prior interests in the property have terminated; and
ii: the persons entitled in remainder to the property in accordance with the settlement have all attained the age of 21 years or sooner died.
4: In the case of a disposition to which the foregoing provisions of this section do not apply and which consists of the conferring of an option to acquire for valuable consideration any interest in land, the rule against perpetuities shall not apply, but that option shall become void on the expiry of 21 years from the date of its grant as between the original parties to that grant and all persons claiming through them; and no remedy shall lie in contract or otherwise for giving effect to it or making restitution for its lack of effect. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 14 (WA); Perpetuities and Accumulations Act 1964 ss 9, 10 (UK)
18: Possibilities of reverter, conditions subsequent, exceptions, and reservations
1: The rule against perpetuities as modified by this Act shall apply—
a: to a possibility of reverter in land on the determination of a determinable fee simple, in which case, if the fee simple does not determine within the perpetuity period, it shall thereafter continue as a fee simple absolute:
b: to a possibility of a resulting trust on the determination of any other determinable interest in property; in which case, if the prior interest created by the trust does not determine within the perpetuity period, the interest it creates shall thereafter continue as an absolute interest:
c: to a right of entry for condition broken the exercise of which may determine a fee simple subject to a condition subsequent, and to an equivalent right in the case of property other than land; in which case, if the right of entry or other right is not exercised within the perpetuity period, the fee simple shall thereafter continue as an absolute interest, and any such other interest in property shall thereafter continue free from the condition.
2: This section shall apply, whether the determinable or conditional disposition is charitable or not, except that the rule against perpetuities shall not apply to a gift over from one charity to another.
3: Where a disposition is subject to any provision that causes an interest to which paragraph (a) or paragraph (b) of subsection (1) applies to be determinable, or to any 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, or to any exception or reservation, the disposition shall be 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. Law Reform (Property, Perpetuities, and Succession) Act 1962 s 15 (WA); Perpetuities and Accumulations Act 1964 s 12 (UK)
19: Rule against perpetuities not to apply in certain cases
1: The rule against perpetuities shall not apply and shall be deemed never to have applied Income Tax Act 2007 section DC 7
1A: The rule against perpetuities shall not apply to the trusts of a share purchase scheme as defined in section YA 1 Income Tax Act 2007
2: Amendment(s) incorporated in the Act(s) Section 19 heading substituted 2 August 1974 Perpetuities Amendment Act 1974 Section 19(1) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 19(1) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 19(1) amended 6 August 1976 Superannuation Schemes Act 1976 Section 19(1A) inserted 2 August 1974 Perpetuities Amendment Act 1974 Section 19(1A) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 19(1A) amended 1 April 2005 section YA 2 Income Tax Act 2004
20: Rule against inalienability
1: Except as provided in subsection (2), nothing in this Act shall affect the operation of the rule of law rendering non-charitable purpose trusts void for remoteness in cases where the trust property may be applied for the purposes of the trusts after the end of the perpetuity period.
2: If any such trust is not otherwise void, the provisions of section 8 Perpetuities and Accumulations Act 1964 s 15(4) (UK) Accumulation of income
21: Accumulation of income
1: Where property is settled or disposed of in such manner that the income thereof may or shall be accumulated wholly or in part, the power or direction to accumulate that income shall be valid if the disposition of the accumulated income is, or may be, valid, and not otherwise.
2: Nothing in this section shall affect the power of any person or persons to terminate an accumulation that is for his or their benefit, or any jurisdiction or power of the court to maintain or advance out of accumulations, or any powers of a trustee under the Trustee Act 1956
3: Amendment(s) incorporated in the Act(s)
4: The enactments repealed by subsection (3), and the corresponding provisions of any former enactment, shall be deemed, in connection with the law of New Zealand, never to have applied to any power to accumulate: provided that this subsection shall not—
a: render any trustee or other person liable for any acts done before the commencement of this Act for which the trustee or person would not have been liable if this Act had not been passed; or
b: enable any trustee or person to recover any money or other property distributed or paid under any trust, if he could not have recovered that money or property had this subsection not been passed.
5: Except as provided in subsection (4), this section shall have effect only as provided in section 4 Law Reform (Property, Perpetuities, and Succession) Act 1962 s 17 (WA) Power to apply to court for directions
22: Power to apply to court for directions
Any person who is a trustee or a donor or settlor of, or who is or claims to be beneficially interested in, any property comprised in a disposition may apply to the High Court Section 22 amended 1 April 1980 section 12 Judicature Amendment Act 1979