It’s About Time: Bermuda’s Approach to the Rule against Perpetuities

For how long should the dead be able to exert control, from beyond the grave, over the living? This question has arisen in the context of the “rule against perpetuities”, a rule that developed from the seventeenth century to ensure that property could not be bound up in private trusts long beyond the lives of the people living when the trust was created.

The rule originated from the Duke of Norfolk’s Case of 1682, which, in the Shakespearian flavour of the time, “concerneth a Great and Noble Family”, namely the Earl of Arundel, who tried to create an estate plan that would endure for many generations. The House of Lords felt that he should not be able to bind his estate with his conditions indefinitely.

Subsequent case law developed on the basis that, after a certain period of time (traditionally twenty-one years after the last to die of certain people who were living at the time of creation of the trust, known as the “perpetuity period”), the property should be released from trust absolutely so that future generations could deal with it unencumbered by the so-called “dead hand” of their ancestors. For many centuries, the rule served this purpose.

 

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It’s About Time: Bermuda’s Approach to the Rule against Perpetuities

 

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