Ward v. Van der Loeff
[1924] A.C. 653

  • Burnyeat died, leaving a wife, Hildegard, a mother, a father, two brothers and two sisters. His will left a trust creating a life estate for his wife, with the remainder going to his children. If there were no children (which their weren’t), the wife got a special testamentary power of appointment to distribute the trust assets to any nephews and nieces he had.
    • The will had a caveat that if Hildegard married a non-British subject, her power of appointment would be revoked and the trust principle would be distributed to all nephews/nieces who were alive when the oldest turns 21.
      • This would also happen is Hildegard did not make an appointment.
  • After Burnyeat died, Hildegard married the non-British Van der Loeff and one of Burnyeat’s brothers had a child named Phillip.
  • The British Trial Court found that the caveat was not valid because it violated the Rule Against Perpetuities. Phillip appealed.
    • In addition, the Trial Court found that the gift to nephews born after Hildegard remarried (aka Phillip) was invalid because the caveat was not invalidated until Hildegard remarried.
  • The British Appellate Court reversed.
  • The British House of Lords reversed the Appellate Court and restored the judgment of the Trial Court.
    • The House of Lords found that a plain reading of the testator’s will showed that it was attempting to postpone the ascertainment of possible members of the class beyond the period of a life in being at the date of the testator’s death plus 21 years.
      • Basically, at the time Burnyeat died, there were no living nephews. It would be possible that Hildegard could remarry thus invoking the clause in the will. Burnyeat’s father (who was still alive) could have another child (who would be Burnyeat’s brother), and that child could eventually spawn a nephew. That nephew would turn 21 more than 21 years after Hildegard died, so the Rule Against Perpetuities would be violated because the clause in the will that gave the assets to the nephews when the oldest turned 21 could occur more than 21 years after Hildegard’s death.
    • Instead of just throwing out the entire trust for a violation, the House of Lords used the Rule of Administrative Convenience and simply closed the class at the date Hildegard lost the power of appointment. Any nieces/nephews born after that date (aka Phillip) would be excluded from the class, and therefore the Rule Against Perpetuities would no longer be violated.