A regular reader of this blog asked the question located in the title. So here goes…

I must warn you, anything doing with inheritance and property laws are, generally, double speak, but we will attempt to respond with some degree of “simplicity” and break this concept down logically. First, let us begin with a definition. The rule against perpetuities is a legal principle in property law that prevents a person from controlling the ownership of property for a time longer than is permitted. The common law rule states that a property interest must “vest” (become certain and definite) no later than 21 years after the death of someone alive when the interest was created. The rule’s purpose is to prevent property from being tied up indefinitely and to promote the marketability of land. Many states have modified or abolished this rule, and modern statutory versions often have different timeframes, such as a 90-year period. 

How it works …

“A life in being plus 21 years”: This is the common law standard for the perpetuity period. The “life in being” refers to a person who was alive when the interest in the property was created (e.g., through a will or deed).

Vesting: An interest is considered “vested” when it is no longer contingent and is certain to be possessed by an identified person.

Remote possibilities: The rule considers any “remote possibility” that the interest might vest later than the perpetuity period. If there is any chance, no matter how unlikely, that the interest could vest too late, it is considered void from the start.

Modern statutory rules: Many states have adopted statutory rules that provide more certainty. For example, North Carolina’s [where I currently reside] statutory rule allows for an interest to be valid if it is certain to vest within 21 years after a life in being or if it vests or terminates within 90 years after its creation. 

Why it’s important?

It prevents control by what is called the “dead hand,” meaning it stops people from controlling property from beyond the grave for an excessive period. It ensures that property can be bought, sold, and developed, rather than being perpetually tied up by long-past owners’ wishes. It prevents a situation where property ownership remains uncertain for generations. 

The Rule Against Perpetuities has been held to be so complicated that lawyers cannot be sued for getting it wrong. The premise is that one can control one’s property beyond the grave for 21 years plus lives in being. Lives in being have been held to begin at conception.

Author Ella Quinn once shared this personal anecdote to explain it to a group of authors discussing this topic when writing about the Regency. “I actually have a pretty simple example in my family. My great-great-grandmother, Ella Quinn, made a lot of money and wanted to put it in a trust to be passed down. At the time she died, my great-grandfather was alive ,as was my grandfather, but my mother had not yet been conceived. Therefore, the trust was limited to my great-grandfather and my grandfather and was broken when it went to my mother. Had she been conceived by the time my great-great-grandmother died, the trust would have broken when it came to me as I had not been conceived at the time Ella died.” 

However, the legal question you stated is not the Rule Against Perpetuities (because we’re dealing with people who are already alive), but whether the clause about funds going to Son 2 would violate public policy. Public policy is quite broad, but it basically keeps people from doing something that would violate the law, commonly held morals, accomplish something impossible, and things like that. So, your question really is not whether he can disinherit Son 2 from beyond the grave, he has already done that, but whether he can prohibit Son 1 from disinheriting Son 2. My guess would be that he cannot, but you’ll have to research court cases. 

Nancy Mayer, who, if you do not know her, is my guru when it comes to questions regarding all things Regency. She has previously shared these points … “Every single piece of legislation or court decision in favor of concentrating property in the hands of one person in each generation and of depriving  younger sons, widows and daughters of inheritance, has been met by other practices, laws, decisions opposing it.

“Though the entail was thought sacrosanct and immovable, those of the time came up with a legal fiction called ‘bar the entail,’ meaning a man and his adult son had to agree on this, meaning the law against perpetuities was met by the law of uses which allowed trusts.

The female side of the equation which also discusses the male rules against which they had to operate is shown in Law Land Family:

Aristocratic Inheritance in England 1300-1800 by Eileen Spring. She has other works on the same subject.

Also, the book Married Women’s Separate property in England1660-1833 by Susan Staves gives a good accounting of the various practices.

A Practical Treatise on the Law of Descents, and was authored by Henry Chitty, a prominent 19th-century English lawyer and legal writer, known for several authoritative legal publications. This book deals with the complex historical laws governing how real property was inherited when a person died without a valid will (intestate), which is the definition of the law of descent and distribution. 

It is not uncommon for cases concerning property to have to go back several hundred years.

Primogeniture also had to fight against a law that says they could not tie up land more than 3 lives in being and 21 years.

Needless to say, the various dispositions of property were very profitable to judges and barristers and the solicitors who drew up deeds, contracts, and wills.

Then there are the customs of Kent which give property to the youngest son.