The rule against perpetuities provides: No interest is good unless it must vest, if at all, no later than twenty-one years after some life in being at the creation of the interest.
A woman, the testator, executed a will which devised a piece of land to her husband for life, to her son for life, then to her son’s children for life; and then, after they die, to land will go to their children. The testator’s surviving heirs argued that this provision in the will, which created a class gift to her great-grandchildren, violated the rule against perpetuities. These heirs wanted the interest in the property to revert back to the testator so that it could be distributed to the other half of her family through intestate succession. The trial judge agreed that the will violated the rule, but inserted a clause in the will to preserve the testator’s intent to benefit both sides of the family equally.
Can the court reform a will to comply with the rule against perpetuities while preserving the testator’s intent?
The law will indulge every presumption in favor of the validity of the will. In South Carolina, the rule of perpetuities is codified in a statute, which mandates the courts attempt to reconstruct the will so as to save the gift rather than declare it void. Thus, the appeals court made a slight modification to the trial judge’s own insertion and reformed the will to make it clear that the land will go to the testator’s son for life, then to any children who are alive at the testator’s death; and, either the remainder will go to their children, or, alternatively, if any of them should die without children, then their interest will be divided only among those who have children.