In Zinn v Bergen 2012 SKQB 214, the deceased left a five page typewritten will dated July 7, 2003 wherein he made several specific bequests, and asked to convert the rest and residue of the estate into cash for the purpose of initially maintaining feeding and caring for his pet animals (but not their offspring), until their death, which presently consisted of four cats. Upon the death of the cats than the residue was to be distributed to two charities.
The deceased subsequently signed a handwritten codicil, which was mostly almost illegible, but dated June April 19, 2011. The first two sentences of the codicil were significant in that they stated :
“This is a supplement to my will that made on July 7, 2003. The main part of the 2003 seventh of July remained the same.
My cats come first– after my expenses are paid been plenty of money for the cats”
The codicil did not purport to revoke any portion of the will, and accordingly the court admitted both documents into probate. Following the decision of Oh v Robinson 2011 SKQB 374,which held “the fact that some of the portions of the will may be in illegible or incomprehensible does not disqualify or prohibit the remaining portions of the will from satisfying the legal requirements for probate.”
The Court found that the testator gives clear expression of an intention to provide for his four cats following his death. He did so by purportedly creating a trust from the
residue “for the purpose of maintaining, feeding and caring for my pet animals,
(but not any off-spring thereof) until their death”, to “find a good home” forthem, and to “pay whatever reasonable amounts may be necessary and advisable from time to time to provide for the maintenance and care of my pets.”
The Codicil reinforces this predominant motivation with the statement “my cats come first”. He goes on “After my expenses are paid then plenty of money for the cats, including medical service and if deemed necessary declawing expenses.”… “The house will likely be used to pay for the cats home and the expenses. … The (house) must not be sold until after the cats are comfortable.”
This purported trust raises obvious questions about its validity (A. J.
Oakley, Parker and Mellows: The Modern Law of Trusts, 9th ed., (London: Sweet & Maxwell, 2008) at pps. 82 and 83 offer these insights:
3-102 Gifts for the maintenance of animals in general are charitable. However, gifts for the maintenance of one or more particular animals are not; … Re Dean is an explicit authority — not all the early cases in this area of the law are particularly explicit — that a non-charitable purpose trust for the upkeep of a given animal may be valid notwithstanding the fact that by its nature it is not enforceable by the beneficiary.
Relying upon these authorities, I find the trust valid. The executors are directed to retain the sum of $10,000.00 dedicated to the exclusive purpose of care, maintenance and health needs of the testator’s cats. Upon the death of the last of the four cats, the balance of this fund shall be disbursed as residue.