Although arising from a development-land dispute, Crest Nicholson Regeneration Ltd v Calvert [2026] EWHC 531 (Ch) highlights the continuing relevance of perpetuity rules in probate practice. Executors administering historic trusts, agricultural land, option agreements and contingent interests may find that the validity and value of estate assets depend on pre-2009 perpetuity regimes.
The 2009 Act Did Not Erase the Past
One of the most important lessons from Crest Nicholson is that legal reform does not necessarily rewrite history. The Perpetuities and Accumulations Act 2009 simplified the law governing perpetuities and removed many of the complexities associated with the earlier regime. However, instruments created before 6th April 2010 frequently remain subject to the legal framework that applied when they were created.
The dispute in Crest Nicholson concerned an option agreement executed in 2002 and later varied in 2006 and 2010. As a result, the court had to consider both the Perpetuities and Accumulations Act 1964 and the 2009 Act when determining the parties’ rights.
For probate practitioners, this illustrates a fundamental reality: estate administration is inherently retrospective. Executors frequently encounter wills, trusts, settlements, and land agreements that were drafted many years – sometimes decades – before the deceased’s death. The applicable law may therefore be significantly older than the administration itself.
Where an estate includes an option agreement, contingent gift or trust created before the 2009 reforms, its validity may still need to be assessed under the perpetuity rules in force when the interest arose. A trust established in the 1990s, for example, may raise very different issues from one created after 2010.
The practical lesson is straightforward. Probate practitioners should not assume that modern legislation governs every asset forming part of an estate. Historical instruments often require historical legal analysis.
Illusion of Labels vs Legal Reality
The second lesson from Crest Nicholson concerns the continuing importance of substance over form.
The parties anticipated potential perpetuity difficulties from the outset. Given the scale of the proposed development, they recognised that planning and acquisition might extend beyond the traditional 21-year period. To address this risk, the transaction was structured to take advantage of an exception in section 9(1) of the Perpetuities and Accumulations Act 1964. The agreement envisaged that Crest would obtain what was described as a “lease”, which would then contain an option to acquire the freehold reversion.
However, Mrs Justice Bacon looked beyond the contractual labels. Although the documentation described the arrangement as a lease, the court concluded that it was, in substance, a licence because the landowner retained rights that were inconsistent with the grant of exclusive possession. As in Street v Mountford [1985], Antoniades v Villiers [1990], and Stewart v Watts [2016], the court was concerned not with what the parties called the arrangement, but with the legal reality of what they had created.
This aspect of the judgment is particularly relevant to probate practitioners. Estates often contain documents drafted by different advisers over many decades, some designed to achieve tax efficiencies, preserve family control of assets, or facilitate succession planning. Yet labels can be misleading.
An option agreement may not operate as intended. A licence may produce proprietary consequences. A trust arrangement may contain contingent interests whose validity is open to challenge. Practitioners who simply rely on a document’s title risk overlooking issues affecting both validity and value.
Practical Implications for Modern Estate Administrators
The continuing relevance of perpetuity law means that estate administrators should treat certain estate assets and processes with particular care.
Land Assets
Where an estate includes agricultural land, development land, or substantial rural holdings, practitioners should investigate whether the title is affected by historic option agreements, rights of pre-emption, overage arrangements, or conditional contracts. As Crest Nicholson demonstrates, the enforceability of such arrangements may still depend on perpetuity principles many years after their creation.
Contingent Trusts
Practitioners should carefully review family trusts containing contingent gifts, particularly those benefiting grandchildren, unborn descendants, or future classes of beneficiaries. Where trusts were established before the 2009 reforms, perpetuity rules may still affect the validity of future interests. An interest that appears valuable on its face may ultimately prove unenforceable following detailed perpetuity analysis.
Valuation and Inheritance Tax
Perpetuity issues can have significant valuation consequences. An unenforceable option agreement or void future interest may materially alter the value of an estate asset, with corresponding implications for inheritance tax calculations, estate accounts and distributions to beneficiaries.
Consider a deceased farmer whose estate includes land subject to a pre-2009 option agreement in favour of a developer. If the option is void because of perpetuity issues, the land may be worth considerably more than initially assumed. If it remains enforceable, it may significantly affect market value. In either case, the executor’s assessment of the asset could have important consequences for inheritance tax reporting and estate administration.
Conclusion
The rule against perpetuities may no longer dominate legal practice in the way it once did, but Crest Nicholson v Calvert demonstrates that it remains highly relevant when dealing with historic property interests and long-established wealth structures. The decision highlights both the continuing significance of pre-2010 perpetuity regimes and the courts’ willingness to look beyond labels to legal substance.
For probate practitioners, the lessons are clear. Estate administration involves more than identifying assets and liabilities; it demands careful examination of the legal foundations upon which those assets rest. Historic option agreements, family trusts and contingent interests may all have significant implications for ownership, valuation, inheritance tax and distribution. In that respect, Crest Nicholson serves as a timely reminder that seemingly archaic rules can still have very modern consequences.
About the Author
Dr Goodtime Okara is a lecturer in law at the School of Law, Humanities and Social Sciences, University of Plymouth. His research focuses on property law, wealth management, succession and housing law.
The views expressed in this article are those of the author and not necessarily those of Today’s Wills and Probate.
