Applying the orthodox, the "wait and see," or the cy pres version of the Rule Against Perpetuities presupposes analyzing the limitations in the dispositive instrument as of the time of their creation to determine whether any gifts are future, whether any future gifts are remainders or executory interests, and whether any remainders or executory interests are contingent. If a contingent future interest might vest, if it vests at all, at a remote time, it is bad ab initio under the orthodox form of the Rule. That being so, the perpetuities question may properly be raised at the time the contingent future interest is created-and the perpetuities question frequently is raised and settled when the contingent future interest is created because many future gifts are made by will, and construction of the instrument is sought as an incident to probate. But some courts have deferred settling a perpetuities question as long as possible.
Robert J. Lynn,
Raising the Perpetuities Question: Conception, Adoption, "Wait and See," and Cy Pres,
17 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol17/iss4/2