(1) If any inter vivos instrument taking effect on or after January 1, 1966, or if the will of any testator dying on or after such date, or if any appointment made on or after such date, including an appointment by inter vivos instrument or will under a power created before such date, purports to convey or devise any interest in real property on a special limitation or subject to a condition subsequent which prohibits or restricts a use of such interest in real property which has been purportedly or in fact previously prohibited or restricted by an earlier conveyance or devise or appointment on a special limitation or subject to a condition subsequent, it shall be conclusively deemed and held that no new special limitation or possibility of reverter or condition subsequent or right of entry is thereby created with respect to such use, whether or not any such earlier special limitation or condition subsequent is still enforceable, unless the grantor in such inter vivos instrument or the testator in such will or the person who exercises such power of appointment expressly recites in such inter vivos instrument or such will or such appointment that he intends to create a new special limitation and possibility of reverter or a new condition subsequent and right of entry, and that he intends the same to be in addition to any other special limitation and possibility of reverter and any other condition subsequent and right of entry which may be then in existence. In the absence of such express recital, which may appear in a codicil to any will making such a devise or appointment, such language of special limitation and possibility of reverter or of condition subsequent and right of entry shall be conclusively deemed and held to be only a recognition of any prior special limitation and possibility of reverter and condition subsequent and right of entry which may be then in existence. (2) Notwithstanding subsection (1) of this section, no presumption of intent shall be applied to any such conveyance or appointment by inter vivos instrument executed prior to April 26, 1965, but taking effect after January 1, 1966, where the person executing such inter vivos instrument, at any time between April 26, 1965, and January 1, 1966, lacks as a matter of law the capacity or power to add the express recital provided in subsection (1) of this section to such inter vivos instrument if a notice of claim, such as that required by sections 38-30-159 and 38- 30-160, is filed for record in the manner set forth in said sections within one year after January 1, 1966; nor shall any presumption of intent be applied to any will making such a devise or appointment executed prior to April 26, 1965, where the testator or person making such appointment by will lacks testamentary capacity at any time between April 26, 1965, and January 1, 1966, and dies on or after January 1, 1966, if a notice of claim such as that required by sections 38-30-159 and 38-30-160 is filed for record in the manner set forth in said sections within one year after his death.
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