This Act may be cited as the Perpetuities Act 1964.

In this Act, unless the context otherwise requires,—

For the purposes of this Act a disposition contained in a will shall be deemed to be made at the death of the testator.

For the purposes of this Act a person shall be treated as a member of a class if in his case all the conditions identifying a member of the class are satisfied, and shall be treated as a potential member if in his case only one or some of those conditions are satisfied but there is a possibility that the remainder will in time be satisfied.

This Act and the rule against perpetuities shall bind the Crown except in respect of dispositions of property made by the Crown.

Except where otherwise expressly provided in this Act, every provision of this Act,—

Where a provision of this Act so applies to a will or other instrument that exercises a power of appointment, that provision shall apply in relation to that exercise, whether or not it applies to the will or other instrument creating the power.

All wills of testators who have died before the commencement of this Act, and all other instruments executed before the commencement of this Act, shall, except where otherwise expressly provided in this Act, be governed by the enactments and rules of law which would have applied to them if this Act had not been passed.

This Act shall apply in relation to a disposition made otherwise than by an instrument as if the disposition had been contained in an instrument other than a will executed when the disposition was made.

For the purposes of the rule against perpetuities, a power of appointment shall be treated as a special power unless—

provided that, for the purpose of determining whether a disposition made under a power of appointment exercisable by will only is invalid as infringing the rule against perpetuities, the power shall be treated as a general power where it would have fallen to be so treated if exercisable by deed.

Subject to subsection (2), where the instrument by which any disposition is made so provides, the perpetuity period applicable to the disposition under the rule against perpetuities, instead of being of any other duration, shall be such period not exceeding 80 years as is specified in the instrument as the perpetuity period applicable to the disposition.

The perpetuity period applicable to any power of appointment may be so specified under this section either in the instrument creating the power of appointment or (subject to the terms of the power) in the instrument made in exercise of the power of appointment.

In the case of a disposition in an instrument made in exercise of a special power of appointment, the period specified as aforesaid shall run from the date of the creation of the power, and in all other cases shall run from the time when the instrument comes into operation.

This section shall apply whenever it becomes relevant to inquire whether any person is or at any relevant date was or will be capable of having a child, if—

Where this section applies, there shall be a presumption, rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision, but not subsequently, that—

Where this section applies, evidence that a male or female of any age is or at a relevant date was or will be incapable of having a child shall be admissible in proceedings in order to establish that incapacity, and the court may accept any such evidence of a high degree of improbability of having a child as it thinks proper as establishing the incapacity.

Where there is an instrument to which this subsection applies in accordance with section 4 and any question is decided by the High Court or any higher court under this section in respect of any disposition made by that instrument by treating a person as incapable of having or unlikely to have a child at a particular time, then (whether or not he or she does so) he or she shall be so treated for the purpose of any question which may arise in relation to the same disposition in any subsequent proceedings; and no action shall lie against a trustee by reason of his having distributed any property in reliance on any such decision of the court:

provided that, if a disposition that is not itself invalid as infringing the rule against perpetuities confers upon a child who is born to a parent at a time when any such court has treated the parent as unable or unlikely to have a child, or upon the husband or wife or civil union partner or de facto partner of such a child, or upon the child’s issue or the husband or wife or civil union partner or de facto partner of any of the child’s issue, a right to any property, that right (including any right to follow or trace the property) shall not be affected by the decision of the court.

In the foregoing provisions of this section references to having a child are references to begetting or giving birth to a child; but (except as provided in subsection (6)) those provisions, except subsection (3), shall also apply in relation to the possibility that a person may at any time have or have had a child by adoption, legitimation, or other means:

provided that, in relation to that possibility, subsection (2) shall be read as if the words “rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision, but not subsequently” were omitted.

The foregoing provisions of this section, so far as they would otherwise apply in relation to the possibility that a person will at any future time have a child by legitimation, shall not apply in the case of any person if it is established that the person has had an illegitimate child who has not been adopted by some other person and that the child and both its parents are living, unless the court is satisfied that there is a high degree of improbability that the child will be legitimated.

Where, apart from the provisions of this section, a disposition would be invalid as infringing the rule against perpetuities, the disposition shall be treated, until such time (if any) as it becomes certain that the vesting must occur, if at all, after the end of the perpetuity period, as if the disposition were not invalid as infringing the rule against perpetuities; and its becoming so certain shall not affect the validity of anything previously done in relation to the interest disposed of by way of advancement, application of intermediate income, or otherwise.

Where, apart from the said provisions, a disposition consisting of the conferring of a general power of appointment would be invalid as infringing the rule against perpetuities, the disposition shall be treated, until such time (if any) as it becomes certain that the power will not be exercisable within the perpetuity period, as if the disposition were not invalid as infringing the rule against perpetuities.

Where, apart from the said provisions, a disposition consisting of the conferring of any power, option, or other right would be invalid as infringing the rule against perpetuities, the disposition shall be treated as regards any exercise of the right within the perpetuity period as if it were not so invalid and, subject to the said provisions, shall be treated as invalid as infringing the rule against perpetuities only if and so far as the right is not fully exercised within that period.

Where any of the foregoing provisions of this section applies to a disposition and the duration of the perpetuity period is not determined by virtue of section 6, it shall be determined as follows:

The said persons shall be as follows:

Where a disposition is limited by reference to the attainment by any person or persons of a specified age exceeding 21 years, and it is apparent at the time the disposition is made or becomes apparent at a subsequent time—

the disposition shall be treated for all purposes as if, instead of being limited by reference to the age in fact specified, it had been limited by reference to the age nearest to the specified age which would, if specified instead, have prevented the disposition from being so invalid.

Where in the case of any disposition different ages exceeding 21 years are specified in relation to different persons,—

Where it is apparent at the time when any disposition is made or becomes apparent at any subsequent time that, apart from this subsection, the inclusion of any persons, being potential members of a class or unborn persons who at birth would become members or potential members of the class, prevents the foregoing provisions of this section from operating to save a disposition from being invalid as infringing the rule against perpetuities, those persons shall thenceforth be deemed for all the purposes of the disposition to be excluded from the class, and the said provisions shall thenceforth have effect accordingly.

Where, in the case of a disposition to which subsection (3) does not apply, it is apparent at the time the disposition is made or becomes apparent at a subsequent time that, apart from this subsection, the inclusion of any persons, being potential members of a class or unborn persons who at birth would become members or potential members of a class, would cause the disposition to be treated as invalid as infringing the rule against perpetuities, those persons shall, unless their exclusion would exhaust the class, thenceforth be deemed for all the purposes of the disposition to be excluded from the class.

Where this section has effect in relation to a disposition to which section 8 applies, the operation of this section shall not affect the validity of anything previously done in relation to the interest disposed of by way of advancement, application of intermediate income, or otherwise.

Section 25 of the Property Law Act 1952 is hereby consequentially repealed:

provided that the repeal of that section shall not restrict the operation of subsection (3) of section 4 of this Act.

Subject to the provisions of this section, where it has become apparent that, apart from the provisions of this section, any disposition (whether made before or after the commencement of this Act) would be invalid solely on the ground that it infringes the rule against perpetuities, and where the general intentions originally governing the disposition can be ascertained from the instrument governing the disposition or (where there is no such instrument) from the terms and scheme of the disposition, the disposition shall be reformed so as to give effect, if possible and as far as possible, to those general intentions within the limits permitted under the rule against perpetuities.

No disposition of any property that was made before the commencement of this Act shall be so reformed—

Where it is possible that any disposition made after the commencement of this section would, apart from the provisions of this section, become invalid solely on the ground that it infringes the rule against perpetuities, and where (if the disposition subsequently became invalid) it would have to be reformed in accordance with subsection (1), the disposition may be reformed under this section before that subsection applies to it, if—

In every case where the reformation of a disposition of any property is required or permitted under this section,—

Where a disposition made before the commencement of this Act is reformed under this section, in determining the validity of the reformed disposition, regard may be had to events and circumstances which have occurred or exist at the date of the reformation.

In any case where the trustees of property comprised in any disposition have become aware that the disposition requires to be reformed, it shall be their duty to take all reasonable steps that may be necessary to secure the reformation of the disposition.

Where a disposition is reformed in accordance with this section,—

For the purposes of this section, a person who is entitled to elect to accept any property under a resulting trust may—

No election which is not so declared or manifested before 1 January 1967 shall have any effect for the purposes of paragraph (c) of subsection (2).

On the reformation under this section of a disposition in a will of a testator who dies after the commencement of this Act, or of a disposition in any other instrument executed after the commencement of this Act, the perpetuity period in respect of that disposition may be specified under section 6.

In the case of any disposition made before the commencement of this Act which is capable of reformation under section 10, where any person other than a donor of property that was given to the trustee upon trust has sold other property to that trustee, or has assisted that trustee (by loan, guarantee, or otherwise) to acquire other property, the High Court may direct that the right of any such donor to elect after the commencement of this Act to accept under a resulting trust any property that is subject to the trust governing the disposition shall be restricted to so much of that property as was given by that donor or fairly attributable to his gift.

Upon any such direction being given by the High Court, any election (whether made before or after the time of the direction) shall be restricted to such property as is specified in the direction.

At the time of giving any such direction or at any subsequent time the High Court may make an order under section 10 reforming the disposition in respect of so much of the property comprised in the disposition as was not given to the trustee by any donor or fairly attributable to any such gift; and the provisions of section 10 shall apply to that part of the property as if the donor thereof were dead.

An application to the High Court under this section in respect of the property comprised in any disposition may be made by the trustee of that property, or by any vendor of property to that trustee, or by any person who assisted that trustee (by loan, guarantee, or otherwise) to acquire that property, or by any person who may be prejudiced by an election to accept a resulting trust in respect of any such property.

In any case where, before the commencement of this Act, it has become apparent that any disposition would be invalid solely on the ground that it infringes the rule against perpetuities, or doubts have arisen as to whether any disposition might be invalid solely on that ground, if within 6 years before the commencement of this Act the property has been resettled to carry into effect the general intentions originally governing the disposition as those general intentions appeared from the instrument governing the disposition or (where there was no such instrument) from the terms and scheme of the disposition, the provisions of paragraph (c) of subsection (7) of section 10, so far as it relates to revenue consequences, shall apply to the resettlement as if it were a reformation of the disposition.

The widow, widower, or surviving civil union partner of a person who is a life in being for the purpose of the rule against perpetuities shall be deemed to be a life in being for the purpose of—

A disposition shall not be treated as invalid as infringing the rule against perpetuities by reason only that the interest disposed of is ulterior to and dependent upon an interest under a disposition which is so invalid, and the vesting of an interest shall not be prevented from being accelerated on the failure of a prior interest by reason only that the failure arises because of remoteness.

Where a court is construing a will or other instrument, whether made before or after the commencement of this Act, and the will or instrument makes a disposition of any property, the court may have regard to the fact that, while under one possible construction the disposition would or might be void as infringing the rule against perpetuities, under another possible construction it would or might be valid; and, in considering which of those constructions is to be preferred, the court may take into account that the maker thereof would probably have intended the construction under which the disposition would be valid.

The rule against perpetuities shall not operate, and shall be deemed never to have operated, to invalidate a power conferred on trustees or other persons to sell, lease, exchange, or otherwise dispose of any property for valuable consideration, or to do any other act in the administration (as distinct from the distribution) of any property, and shall not prevent, and shall be deemed never to have prevented, the payment to trustees or other persons of reasonable remuneration for their services.

Subsection (1) shall not—

The rule against perpetuities shall not apply to a disposition consisting of the conferring of an option to acquire for valuable consideration an interest reversionary (whether directly or indirectly) on the term of a lease if—

Subsection (1) shall apply in relation to an agreement for a lease as it applies in relation to a lease, and the term lessee shall be construed accordingly.

The rule against perpetuities shall not apply to a disposition consisting of the conferring of an option to acquire any property for valuable consideration, if the option is exercised within 21 years after the date on which the instrument conferring the option takes effect, or if—

In the case of a disposition to which the foregoing provisions of this section do not apply and which consists of the conferring of an option to acquire for valuable consideration any interest in land, the rule against perpetuities shall not apply, but that option shall become void on the expiry of 21 years from the date of its grant as between the original parties to that grant and all persons claiming through them; and no remedy shall lie in contract or otherwise for giving effect to it or making restitution for its lack of effect.

The rule against perpetuities as modified by this Act shall apply—

This section shall apply, whether the determinable or conditional disposition is charitable or not, except that the rule against perpetuities shall not apply to a gift over from one charity to another.

Where a disposition is subject to any provision that causes an interest to which paragraph (a) or paragraph (b) of subsection (1) applies to be determinable, or to any condition subsequent giving rise, on breach thereof, to a right of re-entry or an equivalent right in the case of property other than land, or to any exception or reservation, the disposition shall be treated for the purposes of this Act as including a separate disposition of any rights arising by virtue of the provision, condition subsequent, exception, or reservation.

The rule against perpetuities shall not apply and shall be deemed never to have applied to the trusts of any fund of which the main purpose or one of the main purposes is the provision of retiring allowances or pensions on retirement to persons employed in the undertaking or combination of undertakings in connection with which the fund is established, if the fund is a superannuation fund within the meaning of the Income Tax Act 2007, or if the fund is one to which section DC 7 of that Act applies.

The rule against perpetuities shall not apply to the trusts of a share purchase scheme as defined in section YA 1 of the Income Tax Act 2007.

Amendment(s) incorporated in the Act(s).

Except as provided in subsection (2), nothing in this Act shall affect the operation of the rule of law rendering non-charitable purpose trusts void for remoteness in cases where the trust property may be applied for the purposes of the trusts after the end of the perpetuity period.

If any such trust is not otherwise void, the provisions of section 8 shall apply to it, and the property subject to the trust may be applied for the purposes of the trust during the perpetuity period, but not thereafter.

Where property is settled or disposed of in such manner that the income thereof may or shall be accumulated wholly or in part, the power or direction to accumulate that income shall be valid if the disposition of the accumulated income is, or may be, valid, and not otherwise.

Nothing in this section shall affect the power of any person or persons to terminate an accumulation that is for his or their benefit, or any jurisdiction or power of the court to maintain or advance out of accumulations, or any powers of a trustee under the Trustee Act 1956 or under any other Act or law or under any instrument creating a trust or making a disposition.

Amendment(s) incorporated in the Act(s).

The enactments repealed by subsection (3), and the corresponding provisions of any former enactment, shall be deemed, in connection with the law of New Zealand, never to have applied to any power to accumulate:

provided that this subsection shall not—

Except as provided in subsection (4), this section shall have effect only as provided in section 4.

Any person who is a trustee or a donor or settlor of, or who is or claims to be beneficially interested in, any property comprised in a disposition may apply to the High Court for directions in any case where doubt or difficulty arises in respect of the application of any provision of this Act in respect of that disposition.