We Cannot Control Our Property Forever

Thinking about death and what should happen to our possessions after death is an emotional process. We build up a lifetime of memories in a lakeside cabin or are given an irreplaceable record of history in the form of a family heirloom. It can be hard to let go even though we must. To preserve our property or have it used only in the way we wish for it to be, we may be tempted to try and continue controlling it after we die. There are certain ways this can be done legally, for example through the creation of a trust. However, even these ways have a hard limit.

Long ago in England, it was decided no feudal family would be able to own land forever simply because they were such a family, and therefore no one had the right to own land purely because they were born. This eventually extended to all property. Naturally, people made numerous attempts to get around this with clever words or uses of legal constructs when they left property to their heirs. In response to this, the Rule Against Perpetuities evolved among the English courts.

The Rule, just like its history, is very complicated. To add to that complexity, different governments have changed the rule in their jurisdictions in various ways. Alberta has modified it with the Perpetuities Act. However, to greatly oversimply the basic Rule for the purpose of understanding it at all, it might be stated in the form of an example like this:
• If someone (the “testator”) is giving, through their will, all their unborn great-grandchildren ownership of some property when they turn 30 years of age,
• But the testator is telling someone else to use the property for a period before giving it to them,
• Considering everyone involved with this gift who were alive at the time the testator died,
• The Rule: Ownership of the property must legally transfer to someone within 21 years after the last of those living people dies.
Even that example might be hard to fully imagine. To simplify it further, we must be very careful when leaving gifts for people in a will that they will only receive far into the future. There is a limit to how long we are allowed to legally dictate what happens to our property.

Filed Under
Transition of Wealth