N.Y. Estates, Powers & Trusts Law § 9-1.3: Rules of construction

§ 9-1.3 Rules of construction

(a) Unless a contrary intention appears, the rules of construction

provided in this section govern with respect to any matter affecting the

rule against perpetuities.

(b) It shall be presumed that the creator intended the estate to be

valid.

(c) Where an estate would, except for this paragraph, be invalid

because of the possibility that the person to whom it is given or

limited may be a person not in being at the time of the creation of the

estate, and such person is referred to in the instrument creating such

estate as the spouse of another without other identification, it shall

be presumed that such reference is to a person in being on the effective

date of the instrument.

(d) Where the duration or vesting of an estate is contingent upon the

probate of a will, the appointment of a fiduciary, the location of a

distributee, the payment of debts, the sale of assets, the settlement of

an estate, the determination of questions relating to an estate or

transfer tax or the occurrence of any specified contingency, it shall be

presumed that the creator of such estate intended such contingency to

occur, if at all, within twenty-one years from the effective date of the

instrument creating such estate.

(e) (1) Where the validity of a disposition depends upon the ability

of a person to have a child at some future time, it shall be presumed,

subject to subparagraph (2), that a male can have a child at fourteen

years of age or over, but not under that age, and that a female can have

a child at twelve years of age or over, but not under that age or over

the age of fifty-five years.

(2) In the case of a living person, evidence may be given to establish

whether he or she is able to have a child at the time in question.

(3) Where the validity of a disposition depends upon the ability of a

person to have a child at some future time, the possibility that such

person may have a child by adoption shall be disregarded.

(4) The provisions of subparagraphs (1), (2) and (3) shall not apply

for any purpose other than that of determining the validity of a

disposition under the rule against perpetuities where such validity

depends on the ability of a person to have a child at some future time.

A determination of validity or invalidity of a disposition under the

rule against perpetuities by the application of subparagraph (1) or (2)

or (3) shall not be affected by the later occurrence of facts in

contradiction to the facts presumed or determined or the possibility of

adoption disregarded under subparagraphs (1) or (2) or (3).