The will of Woodward was given to the Bank and Trust. Woodward was survived by her children, one being Plaintiff. Woodward had two sons and a daughter. The 8th article of the will created two equal trust funds for the decedents of the two sons, stating “that the son will receive the income so long as he lives and has living children under the age of 25 years and that, upon the son’s death, the income shall be paid to his surviving wife and children for their support, comfort, and education.” The third paragraph stated “When the youngest living child of such son of mine has reached age 25, that trust shall end and the fund shall be divided one-third to such son of mine and two-thirds equally to his then living descendants, per stirpes. Should such son of mine not then be living, the whole of the fund shall go to his then living descendants, per stirpes.”
The final paragraph of the will stated that if any portion of her estate violates state law, the estate will not be held in further trust, “but shall rather be paid over absolutely to the person or persons whom, and in the proportion in which, such portion would ultimately go under the provisions hereof.”
Plaintiff sued their born and unborn children who were named as respondents because the will violated the rule against perpetuities.
(1) Whether a “residuary clause violates the rule against perpetuities”
(2) Whether an invalidity of one clause invalidates the remainder of the will.
Rule against perpetuities in Virginia voids a contingent remainder or executor interest created by will, which may by some possibility, however unlikely that possibility may be, vest beyond a life or lives in being at the effective date of the instrument creating the interest, plus 21 years and 10 months.
“If the interest of one member of that class could vest beyond the time permitted by the rule, the interests of all members of that class fail for remoteness.”
(1) Yes, in this case. The will violates the rule against perpetuities. All parties agree that the will is a violation, unless the final paragraph rescues it from invalidity. The will gives away 2/3 of the will when the youngest son (then living) reaches 25 years old. “Then living” creates an express condition for the will.
In this case “it is possible that ht esons could die survived by a child in gestation or by a child under the age of three years and two months. In such case, the interest of descendants of the testatrix would vest upon the 25th birthday of that child which is beyond the time permitted by the rule.” The court recognizes this isn’t likely, but that it is a possibility nonetheless.
Defendants argue that the court should adopt a “wait and see” approach rather than construe the will based on its possibility. However, the state of Virginia adopts a common law approach of acknowledging possibilities.
Paragraph 8 was adopted because Woodward knew her will could be in violation of the rule against perpetuities. The paragraph attempts for a rewriting such that the will would be compliant upon violation. But the “rule is actuated by the possibility of remoteness, and that possibility must be determined as of the date of the testatrix’s death.”
(2) Yes, in this case it does. The general rule is that “unless infected by the invalidity of the ulterior estates, the anterior estates created by the residuary clause of the Woodward will are valid.” The anterior estates are not infected by the invalidity when the two are not inseparable and dependent parts of the spirit and formation of the will. In the attendant will, the estate of the daughter would receive more money due to the invalidity of the two sons’ wills. “This would effectively thwart the general testamentary scheme and defeat what we perceive to be the primary or dominant purpose of the testatrix.”