If does NOT apply, then heirs get estate (since what O transferred DWT O’s to A did NOT include EI) While creates a in heirs, creates Rule in Case DWT FPI transferor’s FPI Shelley’s in heirs (though, abolished in most states, including CA) transferee’s A has destroyed) to A for life, then to FSA reversion “O A’s heirs” (O’s Notable considerations re: Rule in Case… Shelley’s Applies to real property ONLY (whereas, applies to real AND DWT personal property) must be (whereas, applies to as well) FPI remainder DWT EIs (OR functional equivalent) must be used “Heirs” (NOT so NO consideration of intent) Rule of law rule of construction, DESTRUCTABILITY RULE As per is destroyed destructability rule, CR when… ... prior estate ends AND CR vest can’t 2 interests in same person are separated ONLY by CR … Avoid by NOT creating (i.e. w/ destructability rule CR EI mandatory gap)… OR, by putting in a CR trust… … BUT, would still apply either way RAP … If subject to then (likely) NOT subject to BUT, if destructability rule, RAP… NOT subject to then subject to (Abbiss) destructability rule, RAP at the time, A has to A for life, then to first son of A to reach “O 25”… old son Under is destroyed if, when A dies, first son is destructability rule, CR A’s NOT 25 Under is void b/c it is possible that would vest 21 yrs. after RAP, CR CR death (i.e. if first son dies, A has second son, A dies, and A’s A’s A’s second son does NOT reach 25 within 21 yrs. of death) A’s Thus, could be voided by CR either/or… BUT, at least allows for opportunity for to destructability rule CR vest… … whereas, voids from the very beginning RAP CR … w/ (Festing)… Destructability rule alternate CRs “O to A for life, then to children of A who reach 21, but if none of A’s children reach 21, then to B”…
If DWT does NOT apply, then O’s heirs get estate (since what O transferred to A did NOT include EI) While DWT creates a FPI in transferor’s heirs, Rule in Shelley’s Case creates FPI in transferee’s heirs (though, abolished in most states, including CA) “O to A for life, then to A’s heirs” A has FSA (O’s reversion destroyed) Notable considerations re: Rule in Shelley’s Case… Applies to real property ONLY (whereas, DWT applies to real AND personal property) FPI must be remainder (whereas, DWT applies to EIs as well) “Heirs” (OR functional equivalent) must be used Rule of law (NOT rule of construction, so NO consideration of intent) DESTRUCTABILITY RULE As per destructability rule, CR is destroyed when… ... prior estate ends AND CR can’t vest … 2 interests in same person are separated ONLY by CR Avoid destructability rule by NOT creating CR (i.e. EI w/ mandatory gap)… … OR, by putting CR in a trust… … BUT, RAP would still apply either way If subject to destructability rule, then (likely) NOT subject to RAP… BUT, if NOT subject to destructability rule, then subject to RAP (Abbiss) “O to A for life, then to first son of A to reach 25”… at the time, A has son Under destructability rule, CR is destroyed if, when A dies, A’s first son is NOT 25 Under RAP, CR is void b/c it is possible that CR would vest 21 yrs. after A’s death (i.e. if A’s first son dies, A has second son, A dies, and A’s second son does NOT reach 25 within 21 yrs. of A’s death) Thus, CR could be voided by either/or… … BUT, destructability rule at least allows for opportunity for CR to vest… … whereas, RAP voids CR from the very beginning Destructability rule w/ alternate CRs (Festing)… “O to A for life, then to children of A who reach 21, but if none of A’s children reach 21, then to B”… old
Property-2_Coskran-Spring-2009.docx