Written by attorneys · grounded in primary & secondary sources — see below
A power held by a person to terminate or destroy a future interest at the holder's uncontrolled discretion and solely for the holder's personal benefit. The time during which such a power exists is excluded from the period measured under the rule against perpetuities.
Sources & Authorities
How it applies
Common Examples
2
Personal Power Excludes Destruction Period
Penelope Price conveyed land to a university for use as a research lab, with a remainder to her first descendant who becomes a full-time scientist on the property. She also granted her son Pierce Patterson an unrestricted right to terminate the lab's estate at any time and take the land for himself. When a dispute arises over whether the descendant's interest violates the rule against perpetuities, the court measures the vesting period without including the time Pierce may exercise his power.
Attorney Liability for Drafting Error
Pablo Perez hired an attorney to draft a will leaving property to his first grandchild who becomes a partner at a law firm. The attorney failed to include a personal power of destruction for Pablo's son. After Pablo's death, a grandchild's interest is challenged under the rule against perpetuities because the measuring period now includes time that would have been excluded had the power been granted.
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Restatements
Casebooks
Lucas v. Hamm364 P.2d 685, 690 (Cal. 1961)
Common questions
Frequently Asked
3
When does a power of destruction cause the period of its existence to be excluded from the rule against perpetuities calculation?+
The period is excluded when the power allows termination of the future interest at the holder's uncontrolled discretion and solely for the holder's personal benefit. This exclusion applies because the holder can at any moment eliminate the contingency, removing any concern about remote vesting during that time.
Supporting sources
Does the exclusion apply if the power holder might never exercise the power?+
Yes. The rule focuses on the existence of the uncontrolled and self-interested power, not on whether it is actually exercised. The mere availability of the power at the holder's sole discretion pauses the perpetuities clock regardless of the holder's statements about future intentions.
Supporting sources
What happens to a future interest's validity analysis once the destruction period is excluded?+
The interest is tested as if the power did not exist. If the interest must vest or fail within lives in being plus twenty-one years once the excluded period is removed, the interest is valid under the rule against perpetuities.
Supporting sources
364 P.2d 685 (Cal. 1961)Torts
…is destructible pursuant to the uncontrolled volition and for the exclusive personal benefit of the person having such a power of destruction is not to be included in determining the existence of a suspension of the absolute power of alienation or the permissible period for the vesting of an interest within the rule against…