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BACK Fiji Islands - Legislation
LAWS OF FIJI
Ed. 1978 CHAPTER 130
PROPERTY LAW
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY SECTION
1. Short title. 2. Interpretation. 3. Application of Act and savings.
PART II-DEEDS AND OTHER INSTRUMENTS
4. Formalities of deed. 5. Execution of instruments by or on behalf of corporations. 6. Receipt for consideration money. 7. Persons taking who are not parties. 8. Description of deeds. 9. Exercise of powers. 10. Appointments. 11. Leases need not be by deed. 12. Construction of expressions and stipulations as to time in contracts, etc.
PART III-GENERAL RULES AFFECTING PROPERTY
13. Uses not necessary. 14. Estates tail abolished. 15. Freehold in future may be created. 16. Creation by deed of estate in chattel real. 17. When contingent remainders capable of taking effect. 18. Rights of entry, etc. 19. Certain expressions to be words of purchase; rule in Shelley's case abolished. 20. Restriction on executory limitations. 21. Abolition of restraint upon anticipation. 22. Presumption of survivorship. 23. Equitable waste. 24. No merger by operation of law. 25. Partial release of land from rent. 26. Corporations may hold as joint tenants. 27. Disclaimer of powers. 28. Intermediate income of contingent or executory gifts. 29. Receipts for income by married infants. 30. "Heirs" and other words interpreted. 31. "Heirs of the body" and other words interpreted. 32. Appointments valid notwithstanding objects excluded. 33. Transfer by person of property to himself.
PART IV – PERPETUITIES AND ACCUMULATIONS
34. Application. 35. Interpretation. 36. The perpetuity period. 37. Capacity to procreate or bear a child. 38. Wait and see rule. 39. Power of court to make declaration as to validity of limitations. 40. Invalid age contingencies. 41. Class gifts. 42. Order of applying rules. 43. Unborn spouses. 44. Dependent limitations. 45. Options. 46. Application of the rule to possibilities of reverter, rights of entry and resulting trusts. 47. Powers of appointment. 48. Accumulations of income. 49. Rule in Whitby v. Mitchell abolished. 50. Superannuation funds, etc.
PART V-PROTECTION OF PURCHASERS AND CREDITORS
51. Alienation with intent to defraud creditors. 52. Voluntary transfer of land with intent to defraud purchaser. 53. Purchase in good faith of reversion not to be set aside for undervalue only. 54. Payment of consideration money to barrister and solicitor.
PART VI-COVENANTS AND POWERS
55. Benefit of covenants relating to land. 56. Burden of covenants relating to land. 57. Effect of covenant with two or more jointly. 58. Covenants and agreements made by a person with himself and others. 59. Covenants to be joint and several. 60. Implied covenants may be negatived. 61. Benefit of covenant for title.
PART VII-COVENANTS IMPLIED IN TRANSFERS GENERALLY
62. Covenants implied in transfer by way of sale, etc. 63. Covenant between transferee and transferor implied in transfer subject to a mortgage. 64. Covenant implied in transfer of a lease. 65. Further covenant implied in transfer of a lease. 66. Covenant implied in transfer by trustee or mortgagee.
PART VIII-MORTGAGES
67. Mortgage of a lease to include tenant's fixtures. 68. Covenants, etc., implied in all mortgages. 69. Transferee of land subject to mortgage personally liable to mortgagee. 70. Effect of advance on joint account, etc. 71. Security for further advances. 72. Repayment of mortgages. 73. Mortgagor may require mortgagee to transfer instead of discharging. 74. Encumbrancee to have the like right. 75. Mortgagee may, after default, enter into possession. 76. Further powers of mortgagee as to receipt of rent, etc. 77. Mortgagor in default. 78. Notice not required when money payable on demand. 79. Mortgagee may sell. 80. Restriction on power of variation in case of land. 81. Application of purchase money. 82. Mortgagee may appoint receiver. 83. Mortgagee of leasehold liable for rent after entry. 84. Mortgagee's receipts, discharges, etc. 85. Sections 68 to 83 to apply only in case or mortgage by deed. 86. Equitable mortgages and charges. 87. Restriction on consolidation. 88. Retrospective operation of Part VIII.
PART IX LEASES AND TENANCIES
89. Termination of tenancies. 90. Covenants implied in leases. 91. Powers in lessor. 92. Implied covenant in a sublease. 93. Effect of licence to assign. 94. No fine for licence to assign. 95. Assignment by trustee or liquidator, etc. 96. Merger of reversion not to affect remedies. 97. Rent and benefit of lessee's covenants to run with reversion. 98. Obligation of lessor's covenants to run with reversion. 99. Apportionment of conditions on severance, etc. 100. Restriction on effect of waiver. 101. Personal representatives not personally liable for covenants. 102. Tenant not prejudiced by assignment before notice. 103. Abolition of interesse termini, and as to reversionary leases and leases for lives. 104. Effect of extinguishment of reversion. 105. Restrictions on and relief against forfeiture of leases.
PART X-EASEMENTS, ENCROAMENTS AND MISTAKE.
106.Easement in gross permitted. 107. Access or use of light or air. 108. Court may authorise entry for erecting or repairing buildings, etc. 109. Power of court to grant special relief in cases of encroachment. 110. Relief in cases of mistake as to boundaries or identity of land. 111. Recovery of payments made under mistake of law. 112. Payments made under mistake of law or fact nor always recoverable.
PART XI- ASSIGNMENTS OF THINGS IN ACTION.
113. Assignment of debts and choses in actions.
PART XII- POWERS OF ATTORNEY.
114. Execution by attorney in his own name. 115. Continuance until notice of death or revocation received. 116. Irrevocable power of attorney for value. 117. Power of attorney made irrevocable for fixed time. 118. Application to corporations.
PARTXIII- PARTITION OF LAND AND DIVISION OF CHATTELS
119. In action for partition court may direct land to be sold. 120. Proceeds of sale, how applied. 121. Costs in partition suits. 122. Division of chattels.
PART XIV APPORTIONMENT.
123. Interpretation. 124. Income apportionable in respect of time. 125. Time when apportioned part payable. 126. Recovery of apportioned parts. 127. Exceptions and application.
PART XV SERVICE OF NOTICES
128. Service of notices in case of registered land 129. Service of notices in other cases.
Schedules.
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Act No. 18 of 1971
AN ACT TO CONSOLIDATE AND AMEND THE LAW RELATING TO PROPERTY AND FOR INCIDENTAL AND OTHER PURPOSES
[1st August, 1971]
PART I-PRELIMINARY
Short title
1. This Act may be cited as the Property Law Act.
Interpretation
2. In this Act, unless the context otherwise requires-
"court" means the Supreme Court;
"encumbrance" means all mortgages, charges, estates or interests; and encumbrance has a corresponding meaning, and includes every person entitled to the benefit of an encumbrance, or entitled to require the payment or performance thereof;
"executors" and "administrators" of a deceased person mean respectively the persons to whom probate of the will or letters of administration of the estate of the deceased has been granted by the proper court, whether for general, special or limited purposes; and "executors" includes executors by right of representation;
"fine" includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium or foregift;
"income", when used with reference to land, includes rents and profits;
"instrument" includes a deed and a will and every document registered or capable of registration under the Land Transfer Act, or in respect of which any memorial is by that Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument;
"land" includes all estates and interests in land;
"lease" includes a sub-lease and an agreement for a lease or sub-lease or for a tenancy and "lessee" and "lessor" have corresponding meanings;
"mortgage" includes a mortgage registered or capable of being registered under the provisions of the Land Transfer Act, and also includes a charge on any property for securing money or money's worth or the performance or any obligation; (Cap 131)
"mortgage money" means all moneys, whether principal sum, annuity, rentcharge or other periodical payment, interest or other moneys whatsoever, owing under or secured by a mortgage;
"mortgagee" includes any person from time to time deriving title under the original mortgagee; and "mortgagee in possession" means a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property;
"mortgagor" includes any person from time to time deriving title under the original mortgagor, or entitled to redeem or pay off a mortgage, according to his estate, interest or right in the mortgaged property;
"owner" means the owner of any property or any estate or interest therein, and includes a proprietor;
"personal representative" means an executor or administrator;
"possession" when used with reference to land, includes the receipt of income therefrom;
"property" includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest;
"proprietor" means the person who for the time being is registered as the proprietor of land subject to the provisions of the Land Transfer Act, or of any estate or interest therein and in the case of property or any estate or interest therein not subject to the provisions of that Act whether on account of non-registration thereunder or otherwise means the owner of that property or person entitled to an estate or interest therein; (Cap. 131)
"purchaser" means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property; and where the context so requires "purchaser" includes an intending purchaser and "purchase" has a corresponding meaning;
"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and "the register" and "registration" have corresponding meanings; (Cap. 131)
"rent" includes yearly or other rent, toll, duty, royalty, or other reservation by measurement or otherwise;
"sale" means a sale properly so called;
"transfer" includes a transfer registered or capable of being registered under the provisions of the Land Transfer Act, or any other Act and also includes any assignment, appointment, lease, settlement or other transfer or assurance of any property whether or not the same is so registered or is capable of being so registered and "transfers" or "transferred" have corresponding meanings; (Cap. 131)
"trust" and "trustee" have the same meaning as in the Trustee Act; (Cap. 65)
"will" includes codicil.
Application of Act and savings
3.-(1) This Act shall be read and construed so as not to conflict with the provisions either of the Land Transfer Act, or the Agricultural Landlord and Tenant Act. (Cap. 131, Cap. 270.)
(2) Subject to the provisions of subsection (1) and except as otherwise expressly provided in this Act, all of the provisions of this Act shall, as far as they are applicable, apply to land and instruments subject to the provisions of the Land Transfer Act and of the Agricultural Landlord and Tenant Act. (Cap. 131, Cap. 270.)
(3) Without prejudice to the operation of the Interpretation Act, any alteration, by this Act, of the law, shall not, unless otherwise expressly provided by this Act affect- (Cap. 7.)
(a) any right accrued, or obligation incurred, before the commencement of this Act under the law so altered; or
(b) the validity or invalidity, or any operation, effect or consequence, of any instrument executed or made, or of anything done or suffered before that date; or
(c) any action, proceeding or thing pending on that date or uncompleted on that date and that action, proceeding and thing may be carried on and completed as if the law had not been altered.
PART II-DEEDS AND OTHER INSTRUMENTS
Formalities of deed
4.-(1) Every deed, whether or not affecting property, shall be signed by the party to be bound thereby, and shall also be attested by at least one witness not being a party to the deed, but no particular form of words shall be requisite for the attestation.
(2) Sealing of a deed is not necessary except in the case of a deed executed by a corporation under its common or official seal.
(3) Formal delivery and indenting are not necessary in any case.
(4) Every instrument expressed or purporting to be an indenture or a deed or an agreement under seal or otherwise purporting to be a document executed under seal and which is executed as required by this section shall have the same effect as a deed duly executed in accordance with the law in force immediately prior to the commencement of this Act.
(5) Every instrument registered or capable of being registered under the provisions of the Land Transfer Act, shall upon execution have the effect of a deed made between the parties executing the same. (Cap. 131.)
Execution of instruments by or on behalf of corporations
5.-(1) A deed shall be deemed to have been duly executed by a corporation aggregate in favour of a purchaser, if the seal of that corporation is affixed to the deed in the presence of and attested by a person who is its clerk, secretary or other permanent officer or his deputy, and a member of its board of directors, council or other governing body.
(2) Where a seal purporting to be the seal of a corporation aggregate has been affixed to a deed, attested by a person and a member purporting to be such a person and such a member as is referred to in subsection (1), the deed shall be deemed to have been duly executed and to have taken effect accordingly.
(3) The board of directors, council or other governing body of a corporation aggregate may, by resolution or otherwise, appoint an agent either generally or in any particular case, to execute on behalf of the corporation any agreement or other instrument not under seal in relation to any matter within the powers of the corporation.
(4) When a person is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name of, or on behalf of a corporation, sole or aggregate, he may as attorney execute the instrument by signing the name of the corporation and adding the words "by its attorney" and his own signature in the presence of at least one witness and, subject to compliance by such attorney with the provisions of subsection (3) of section 115, an instrument so executed shall take effect and be valid as if duly executed by the corporation.
(5) Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name or on behalf of any other person (including another corporation), an officer of the corporation aggregate appointed for that purpose by the board of directors, council or other governing body of that corporation by resolution or otherwise, may execute the instrument in the name of that other person; and if the instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorised.
(6) The foregoing provisions of this section apply to transactions wherever effected, but only to instruments executed after the date of the coming into operation of this Act, except that, in the case of powers or appointments of an agent or officer, those provisions apply whether the power was conferred or the appointment was made before or after that date.
(7) Notwithstanding anything contained in this section, any mode of execution or attestation authorised by law or by practice or by the statute, charter, memorandum or articles, deed or settlement or other instrument constituting the corporation or regulating the affairs thereof, are (in addition to the modes authorised by this section) as effectual as if this section had not come into operation.
Receipt for consideration money
6. An acknowledgement of the receipt of the consideration contained in the body of a deed shall be as valid and effectual in all respects as if the same had also been endorsed thereon.
Persons taking who are not parties
7.-(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he is not named as a party to the transfer or other instrument that relates to the land or property.
(2) In cases other than those to which the provisions of subsection (1) are applicable, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, that contract is enforceable by that person in his own name subject to -
(a) all defences which would have been available to the defendant had the plaintiff been named as a party to the contract;
(b) each person named as a party to the contract being joined as a party in the proceedings; and
(c) the defendant against whom relief is sought being entitled to enforce as against the plaintiff all obligations which in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.
(3) Unless the contract referred to in subsection (2) otherwise provides, the contract may be cancelled by the mutual consent of the persons named as parties thereto at any time before the person referred to in that subsection has adopted it either expressly or by conduct.
Description of deeds
8. Any deed, whether or not it is an indenture, may be described (at the commencement thereof or otherwise) as a deed simply, or as a transfer, deed of exchange, settlement, mortgage, charge, transfer of mortgage, appointment, lease or otherwise according to the nature of the transaction intended to be effected.
Exercise of powers
9. Where a power of appointment by deed or writing, otherwise than by will, is exercised by deed executed in the manner required by this Act, the deed shall be deemed to be a valid exercise of the power, notwithstanding that by the instrument creating the power some additional or other form of execution is required.
Appointments
10. No appointment to be made by deed or writing (otherwise than by will) in exercise of a power shall be valid unless the same is executed as a deed in accordance with the provisions of this Act.
Leases need not be by deed
11. A deed is not necessary to the validity of a lease.
Construction of expressions and as to time in contracts etc.
12. -(1) In all deeds, contracts, wills, orders and other instruments executed or made on or after the commencement of this Act, unless the context otherwise requires:-
(a) "month" means a calendar month;
(b) "person" includes a corporation;
(c) the singular includes the plural and vice versa;
(d) the masculine includes the feminine and vice versa;
(e) every word in either of the said numbers or genders shall be construed as including a body corporate.
(2) Stipulations in a contract, as to time or otherwise, that according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law in accordance with the rules of equity.
PART III - GENERAL RULES AFFECTING PROPERTY
Uses not necessary
13. Every limitation which may be made by way of use operating under the imperial enactment known as the Statute of Uses or under this Act may be made by direct transfer without the intervention of uses.
Estates tail abolished
14. (1) In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not been passed, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable, as the case may be) in that land in favour of that person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.
(2) Where at the commencement of this Act any person is entitled to an estate tail (legal or equitable), whether in possession, reversion or remainder, in any land, that person, save as hereinafter mentioned, shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be), in that land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.
(3) In subsection (2) the expression "estate tail" includes that estate in fee into which an estate tail is converted where the issue in tail is barred, but the persons claiming estates by way of remainder are not barred; also an estate in fee voidable or determinable by the entry of the issue in tail; but does not include the estate of a tenant in tail after possibility of issued extinct.
Freehold in future may be created
15. An estate of freehold to take effect at a future time may be created by any deed by which a present estate of freehold may be created.
Creation by deed of estate in chattel real
16. Any estate or interest that is capable of being created by will in any chattel real may also be created by deed.
When contingent remainders capable of taking effect
17. -(1) A contingent remainder shall be capable of taking effect notwithstanding the destruction or determination by any means of the particular estate immediately preceding, and notwithstanding that it may have been created expectant on the termination of a term of years.
(2) A contingent remainder or a contingent interest lying between two estates vested in the same person shall prevent the merger of those two estates.
Rights of entry, etc.
18. Every right of entry, contingent remainder, and every contingent or executory or future estate, right or interest in property, may be transferred by deed.
Certain expressions to be words of purchase; rule in Shelley's case abolished
19. Where in an instrument coming into operation after the commencement of this Act a remainder is limited mediately or immediately to the heirs or heirs of the body of a person to whom an estate for any life in the same property is expressly given, the estate of that person shall be an estate for the life mentioned with remainder to the persons who on the death of that person intestate would be beneficially entitled to his property and in the same shares.
Restriction on executory limitations
20. Where there is a person entitled to land for an estate in fee, or for a term of years absolute, or determinable on life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect if and as soon as there is living any issue that has attained the age of twenty-one years, of the class of default or failure whereof the limitation over was to take effect.
Abolition of restraint upon anticipation
21 .-(1) A restriction upon anticipation or alienation attached to the enjoyment of any property by a woman that could not have been attached to the enjoyment of that property by a man is of no effect.
(2) This section applies to any instrument whether executed before, on or after the commencement of this Act.
Presumption of survivorship
22. In all cases where, on or after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, those deaths shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.
Equitable waste
23. An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer that right expressly appears by the instrument creating that estate.
No merger by operation of law
24. There shall not be any merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.
Partial release of land from rent
25. A release from a rent of part of the land out of which it is payable does not extinguish the whole rent, but operates only to bar the right to recover any part of the rent out of the land released, without prejudice to the rights of any persons interested in the land remaining unreleased, and not concurring in or confirming the release.
Corporations may hold as joint tenants
26.-(1) A body corporate shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual, and where a body corporate and an individual or two or more bodies corporate become entitled to any property under circumstances or by virtue of any instrument which would, if the body corporate had been an individual, have created a joint tenancy they shall be entitled to the property as joint tenants:
Provided that the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.
(2) Where a body corporate is a joint tenant of any property, then on its dissolution the property shall devolve on the other joint tenant.
Disclaimer of powers
27. -(1) A person to whom is given any power, whether coupled with an interest or not, may by deed, disclaim, release or contract not to exercise the power, and after such disclaimer, release or contract shall not be capable of exercising or joining in the exercise of the power.
(2) On any such disclaimer, release or contract the power may be exercised by the other or others, or the survivor or survivors of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.
(3) This section applies to powers created by instruments coming into operation either before or after the commencement of this Act.
Intermediate income of contingent or executory gifts
28. Where under an instrument, other than a will, property stands limited to a person for a contingent or future interest, or stands limited to trustees upon trust for a person whose interest is contingent or executory, that interest shall carry the intermediate income of that property, from the time when the instrument comes into operation, except so far as the income or any part thereof may be otherwise expressly disposed of.
Receipts for income by married infants
29. A married infant shall have power to give valid receipts for all income, including accumulations of income made during minority, to which the infant may be entitled in like manner as if the infant were of full age.
"Heirs" and other words interpreted
30. -(1) Where by or under the terms of any instrument coming into operation after the commencement of this Act, any property would except for the provisions of this Act, vest in -
(a) the heir or heirs of any person; or
(b) the next of kin of any person, such property shall vest in the persons who on the death of the person intestate would be beneficially entitled to his real and personal estate upon intestacy, and in the same shares.
(2) This section applies only if and so far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions therein contained.
"Heirs of the body" and other words interpreted
31.-(1) Where by or under the terms of any instrument coming into operation after the commencement of this Act, any property would, except for the provisions of this Act, vest in -
(a) the heir or heirs of the body of any person; or
(b) the heir or heirs male of any person or the heir or heirs male of the body of any person; or
(c) the heir or heirs female of any person, or the heir or heirs female of the body of any person,
the property shall vest as follows:-
in case (a) in the issue of that person as tenants in common per stirpes; and
in case (b) in the sons and issue of sons of that person as tenants in common per stirpes; and
in case (c) in the daughters and the issue of daughters of that person as tenants in common per stirpes.
(2) This section applies only if and so far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions therein contained.
Appointments valid notwithstanding objects excluded
32.-(1) An appointment in exercise of any power to appoint any property amongst several objects shall be valid and effectual notwithstanding that any one or more of the objects do not by the appointment or in default of appointment take a share or shares of the property.
(2) Nothing in this section shall prejudice or affect any provision in any instrument creating any power which declares the amount of the share or shares from which no object of the power shall be excluded, or some one or more object or objects shall not be excluded.
Transfer by person of property to himself
33. A person may transfer property to himself or to himself and another person or persons.
PART IV - PERPETUITIES AND ACCUMULATIONS
Application
34.-(1) Except where otherwise expressly provided in this Part, this Part -
(a) insofar as it applies to wills, applies only to the wills of testators dying after the commencement of this Act; and
(b) insofar as it applies to instruments other than wills, applies only to instruments executed after that date.
(2) This Part binds the Crown.
Interpretation
35. In this Part, unless the context otherwise requires -
"instrument" includes a will and also includes an instrument, testamentary or otherwise, exercising a power of appointment, whether general or special, even if the power were created before this Part came into operation; but does not include any written law;
"limitation" includes any provision in an instrument whereby any property, or any interest in any property, or any right, power, authority or discretion in or over or in connection with any property, is or purports to be devised or bequeathed to, or created for, or given or granted or appointed to or conferred upon, or otherwise limited to, any person or purpose, and whether subject to a condition, precedent or subsequent, or not.
The perpetuity period
36. In determining whether any limitation is invalid as infringing the rule of law known as the rule against perpetuities, the perpetuity period is, for the purposes of that rule, such period of years not exceeding eighty as may be specified in the instrument creating that limitation or, if no such period of years is specified in such instrument, the period that is applicable under that rule at law.
Capacity to procreate or bear a child
37. -(1) This section applies whenever, in determining whether any limitation is invalid as infringing the rule against perpetuities, or in determining the right of any persons to put an end to a trust or accumulation, or generally in the management or administration of any trust, estate or fund, or for any purposes relating to the disposition, transmission or devolution of property, it becomes relevant to enquire whether any person is or at a relevant date was or will be capable of procreating or bearing a child.
(2) Where this section applies, there is a presumption, rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision (but not subsequently), that -
(a) a woman who has attained the age of fifty-five years is incapable of bearing a child; and
(b) a male or female who has not attained the age of twelve years is incapable of procreating or bearing a child.
(3) Where this section applies, medical evidence that a male or female of any age is or at a relevant date was or will be incapable of procreating or bearing a child is admissible in proceedings in order to establish that incapacity, and the court may accept any such evidence of a high degree of improbability of procreating or childbearing as it thinks proper as establishing the incapacity.
(4) Any decision of the court, in which any such presumption as is mentioned in subsection (2) is applied or in which any such evidence as is mentioned in subsection (3) is accepted remains effective notwithstanding the subsequent birth of a child; but if a limitation, that is not itself invalid as infringing the rule against perpetuities, confers upon that child or his spouse, or upon his issue or the spouse of any of his issue, a right to any property, that right (including any right to follow or trace the property) is not affected by the decision of the court.
Wait and see rule
38. -(1) A limitation shall not be declared or treated as invalid, as infringing the rule against perpetuities, unless and until it is certain that the interest that it creates cannot vest within the perpetuity period or, if the limitation creates or confers a general power of appointment over or in connexion with property, that the power cannot become exercisable within the perpetuity period, but if the power becomes exercisable, within that period, it is valid.
(2) Where a limitation creates a power exercisable over or in connexion with any property, whether that power be a special power of appointment, or a power of advancement or of distribution under a discretionary trust, or any other power (not being a general power of appointment or a power that is exempted from the application of the rule against perpetuities by section 25 of the Trustee Act), that limitation is valid, so far as the rule against perpetuities is concerned - (Cap 65)
(a) if the power is exercisable only during the perpetuity period; or
(b) if and to the extent that the power is exercised during the perpetuity period.
(3) Nothing in this section makes any person a life in being for the purpose of ascertaining the perpetuity period unless that person would have been reckoned a life in being for that purpose if this section had not been enacted.
Power of court to make declaration as to validity of limitations
39. -(1) A trustee of any property, or any person interested under, or on the invalidity of, a limitation of property, may at any time apply to the court for a declaration as to the validity, in respect of the rule against perpetuities, of a limitation of that property.
(2) The court may, on an application under subsection (1), make a declaration, on the basis of facts existing and events that have occurred at the time the declaration is made, as to the validity or otherwise of the limitation in respect of which the application is made; but the court shall not make a declaration in respect of any limitation the validity of which cannot be determined at the time at which the court is asked to make the declaration.
Invalid age contingencies
40. -(1) Where in an instrument the absolute vesting either of capital or income of property, or the ascertainment of a beneficiary or class of beneficiaries, is made to depend on the attainment by any person of an age exceeding twenty-one years, and the gift to that beneficiary or class or any member thereof, or any gift over, remainder, executory limitation or trust arising on the total or partial failure of the original gift, would, but for this section, be rendered invalid as infringing the rule against perpetuities, the instrument takes effect for the purposes of that gift, gift over, remainder, executory limitation or trust as if the absolute vesting or ascertainment had been made to depend on the person attaining the age of twenty one years, and that age shall be substituted for the age stated in the instrument.
(2) This section applies to any instrument other than a will executed after the commencement of this Act and to any testamentary appointment (whether made in exercise of a general or special power), devise or bequest contained in the will of a person dying after that date, whether the will was made before or after that date; but, in the case of an instrument executed, and the will of a person dying, after the commencement of this Act, this section applies only to the extent provided in section 42.
(3) This section applies without prejudice to any provision whereby the absolute vesting either of capital or income of property, or the ascertainment of a beneficiary or class of beneficiaries, is also made to depend on the marriage of any person, or any other event which may occur before the age stated in the instrument is attained.
Class gifts
41. -(1) A limitation to a class of persons is not invalid as infringing the rule against perpetuities by reason of the failure of the limitation as to some only of the members of the class, but the limitation shall, in that case, be construed and take effect as a limitation only to those members of the class who attain a vested interest within the perpetuity period.
(2) This section applies only to the extent provided in section 42.
Order of applying rules
42 .-(1) The provisions of section 40 shall not be applied -
(a) unless and until it is certain that a limitation as worded is invalid as infringing the rule against perpetuities; and
(b) unless either -
(i) the application of the provisions of that section would render the limitation valid; or
(ii) the application of the provisions of that section, in conjunction with the provisions of section 41, would render the limitation valid.
(2) The provisions of section 41 shall not be applied unless and until -
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