, 9 months) are added.
Procedure To determine whether a future interest violates the rule, go through the following steps:
Identify all interests created in the grant, will, etc.
Identify all “lives in being.”
Add 9 months to guard against gestation period.
Add a “nonlife in being” who is a potential taker or the source of a taker.
Kill off all “lives in being.”
Will the future interests definitely vest or fail to vest within 21 years?
If there is uncertainty, the void provision is struck and possession reverts to the preceding estate or to the grantor.
Example: O grants “To A for life, remainder to A’s children for life, remainder to his grandchildren at the death of A’s last child,” where A has two sons and a grandchild at the time of transfer.
Step 1 A has a present possessory life estate (not subject to the rule); A’s sons have a vested remainder in a life estate, which is subject to open (and to the rule); A’s grandchildren have a vested remainder subject to open (and to the rule).
Step 2 A, A’s sons and grandchildren living at the time of transfer are all “lives in being.”
Step 3 If A has another child within nine months, that child will also be a life in being.
Step 4 A could have a son two years after the grant is made. Although the child affects the vesting of his life estate with his brothers and has a causal effect on the class of grandchildren, he was not alive at the time of transfer.
Step 5 A, his two sons, and his grandchild could all die in a plane crash a year later, so that only the third son remains alive. The perpetuities period starts.