Why Is Joseph P. Kennedy Named in My Trust?

Occasionally, a person who has completed an estate plan with their lawyer may be surprised to discover a reference to Joseph P. Kennedy and his descendants buried deep within their trust document. Discovering in your very personal estate planning documents the name of someone with whom your family has absolutely no connection can be particularly puzzling, and even distressing. Undoubtedly, such a circumstance has led to concerned phone calls to the drafting attorney, demanding to know what on earth it means.

The Rule Against Perpetuities

The rule against perpetuities (RAP), a common trust provision often referred to as a “savings clause,” comes from a somewhat arcane rule that originated centuries ago in English trust law to prevent land-owning nobility from locking up their family wealth in trusts that could exist forever. A perpetuity has no end date.

The RAP grew out of case law and eventually became part of the statutory law in most states in some form or another. Traditionally, a common form of the rule was “[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”[1]

Although it may seem simple on the surface, the rule’s application can be fairly complicated and has resulted in plenty of controversy. One legal scholar has even referred to it as “a technicality-ridden legal nightmare” and a “dangerous instrumentality in the hands of most members of the bar.”[2]

A major problem with the RAP was that, traditionally, courts could completely invalidate a trust document that violated the rule, leaving default state laws (intestacy statutes) to determine the terms for passing property to the deceased owner’s heirs. Although many states have modified the rule to avoid invalidating the entire trust, it could still prevent certain beneficiaries from ultimately receiving their interest in the trust, frustrating the trustmaker’s intent. The RAP, therefore, could have disastrous consequences for some families. Thus, it became crucial to carefully draft trusts to avoid violating the RAP.

Drafting Language to Get Around the Rule

As creating trusts became common for individuals and families, estate-planning attorneys routinely used certain boilerplate (or standard legal language) in trust documents to circumvent the pitfalls that the RAP introduced. By naming an easily identifiable family with a large number of descendants (even if they likely have no relation or connection with the individual creating the trust), trust attorneys used the RAP’s language to designate the “some life in being” element of the rule, instead of using a life in being that was related to the trustmaker. The nature of Joseph P. Kennedy’s family, with their well-known tendency to have many children, made them a natural choice for a group of descendants from which the courts could identify “some life in being” to which the RAP could apply. By doing this, the argument goes, there was a much greater chance of identifying a very young life in being at the time of the interest’s creation, thereby maximizing the amount of time that an interest in the trust could vest in the trust’s named beneficiaries.

Some attorneys have used other easily identifiable groups of descendants such as those of Queen Victoria of England, the Rockefeller family of New York, and Brigham Young of Vermont, whose progeny is particularly extensive.

State Law Modifications to the RAP