Perpetual Cases on Perpetuities
Goss Estate (Re), 2020 ABQB 121 (CanLII) is the most recent case to discuss the applicability of the Rule Against Perpetuities.
As stated in the case, “Cases involving the Rules Against Perpetuities are rare, however the Rule is alive and well in Alberta…”.
The case notes, dramatically, that the common law doctrine limits “the grasp of the dead hand … on the hand of the living.”
Simply put, the Rule provides that “No interest is good unless it must vest; if at all, not later than 21 years after some life in being at the creation of the interest.”
In Goss Estate, the Rule was applied and the trust created by the testator was found to be invalid. There, the deceased left a will that provided that the residue of the estate was to “be retained in trust for future generations of children and grandchildren”, with only the interest on the capital to be paid out. There was no ultimate residual beneficiary named.
Although Alberta has a “wait and see” rule that provides that if an interest may vest during the period, the trust is not necessarily invalid, such a provision did not apply in Goss as the court found that the interest was incapable of vesting within the perpetuity period.
In conclusion, the court found that the trust was invalid. As there were no named residual beneficiary, the estate passed on an intestacy, to the testator’s two children. With respect to the trust that was intended, “While [the testator] had somewhat noble ideas about how to deal with his estate, perpetual trusts have been unenforceable since 1682”.
For other blogs on the Rule Against Perpetuities, see Stuart Clark’s blog, Rule Against Perpetuities – It’s not so scary, and my blogs, Property Rights and the Rule Against Perpetuities and Hollywood, and the Rule Against Perpetuities.
As always, thank you for reading.