## Facts

- William John Dalzell Burnyeat (the testator) died leaving a will and a codicil executed in the year of his death.
- He was survived by his wife, Hildegard Burnyeat; his mother and father (each about 67 years old); four siblings; and various nieces and nephews.
- Under the testamentary scheme, property was held on trust for Hildegard for life, subject to a condition that could bring her life interest to an end if she remarried a person meeting a stated status (described in the case materials as a naturalized British subject).
- The codicil revoked Hildegard’s prior power to choose beneficiaries among the testator’s nieces and nephews and substituted a fixed remainder gift to a class.
- The remainder was given in trust for “the children of my brothers and sisters,” defined to include those living at Hildegard’s death and those born within 21 years after her death.
- After the testator’s death, Hildegard married Van der Loeff, a naturalized British subject, which was treated as triggering the codicil’s condition terminating her life interest.
- After Hildegard’s remarriage, Philip Ponsonby Burnyeat, a nephew of the testator, was born and claimed a share as a member of the class gift to the children of the testator’s brothers and sisters.
- The trial court held the class gift void for remoteness under the Rule Against Perpetuities, which prevented Philip from taking under that gift. Philip appealed, and the matter reached the House of Lords.

## Issues

1. Whether the remainder gift to the class of “children of my brothers and sisters,” including those born within 21 years after the widow’s death, was void from the outset under the Rule Against Perpetuities because it was possible that the class would not be finally ascertained and vested within the permitted period.
2. Whether, for Rule Against Perpetuities analysis, the court must assume as a matter of law that living persons (including the testator’s parents aged about 67) could still have children, creating the possibility of additional siblings and later-born nieces and nephews.
3. Whether the dispositive language could be construed so that the class necessarily closed (or interests necessarily vested) within the perpetuity period, rather than failing in full.

## Decision

- The House of Lords held the class gift to the children of the testator’s brothers and sisters void for remoteness under the Rule Against Perpetuities.
- The Lords applied the common-law “possibility” approach, assessing validity at the testator’s death and asking whether it was possible that vesting could occur outside lives in being plus 21 years (and gestation).
- Because it was legally possible that the testator’s parents (both alive at his death) might have another child after his death, the testator might acquire a new sibling after the instrument took effect; that new sibling could then have children whose membership in the class would be determined too late.
- The court did not read the codicil as forcing an earlier closing of the class or an earlier vesting that would save the gift.
- As the class gift was void from the outset, Philip (born after the widow’s remarriage) could not take under that disposition.

## Legal Principles

- Under the common-law Rule Against Perpetuities, a future interest is void if, at the time the instrument takes effect, there is any possibility that the interest might vest beyond lives in being plus 21 years (and gestation).
- Validity is judged at the time of creation, not by what later happens; an interest that is too remote in possibility is void from the outset even if events later occur within the period.
- For class gifts, if the gift is structured so that the class may include members who could be added, or could become entitled, outside the perpetuity period, the entire class gift fails (not merely the remote member).
- In applying the rule, courts use fixed legal assumptions about fertility: while a person is alive, the law treats that person as capable of having children, regardless of age or likelihood, unless the instrument itself supplies a closing mechanism that cures remoteness.
- A court will not rewrite a testamentary scheme to avoid remoteness where the language leaves open a real (even if unlikely) route to vesting outside the perpetuity period.

## Conclusion

In *Ward v. Van der Loeff*, the House of Lords invalidated a testamentary remainder to the class of the testator’s nieces and nephews because, measured at the testator’s death, it was possible that the class could include members whose interests would not vest within the perpetuity period, given the legal assumption that the testator’s living parents might still have children and thereby create later-born members of the class.


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