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Pet Law: Everything to Fido

Everything to Fido

In the early 1990s I was consulted by executors of a deceased doctor who died without a spouse or children, and left her at that time large estate of $1 million to her two dogs and four cats in trust for their lives, and upon the death of the last pet, hen to her former medical partners.

Two law professors  Seltzer and Beyer published a book in 2010 called “Fat Cats and Lucky Dogs” and stated what many people already suspect, namely the  83% of pet owners consider their pet to be a family member; 70% of pet owners allow their pets to sleep on their beds, and almost all pet owners (98%) freely admit to talking to their pets. Far fewer people admit to their pets talking back to them.

The aforesaid will where  the monies in the estate were left in trust to the cats and dogs was poorly drawn .

The solicitor should have set up a pet care trust fund in the will , wherein sufficient funds are set aside for shelter, food and veterinary care  on the assumption the pet will live a long time and in a comfortable state.

Accordingly more than sufficient funds should be donated to the trust and upon the expiration of the lives of the  pet(s)  and the termination of the trust, the remaining funds should probably then be distributed to an animal charity or other similar cause .

Some clients literally have no next of kin and wish to leave all of their assets in a trust for their pets  future care   after death. This should be discouraged  as it will invariably end in estate litigation re capacity, an intestacy  to a far-off relative  or even worse  if no relatives,  then escheat to the crown .

Vee Shroff,  (shroff@telus.net) a Vancouver lawyer specializing in Pet Law has kindly allowed me to post the following from her writings on various aspects of this interesting niche:

More than half of all Canadian households have at least one pet and as most pet owners see their pet as a valued family member, it’s important to make a plan for your pet for after you’re gone. Don’t assume that someone you know will step in and look after your pet when you die.  Try to find an intended caregiver for your pet and designate that person in your will. In Canada, pets are unable to be named as a beneficiary of an estate directly. The law still sees pets as property and you cannot give a gift to ‘property’.   Until Canadian law recognize animals as sentient beings, pet trusts remain a tricky proposition. Pets are simply another good reason to ensure that your will and estate planning is considered well in advance of your demise.   

Generally speaking, ‘pet trusts’ are currently not recognized in law, but by inserting a testator’s wishes for pet care into a will, they tend to have more force. As there is no specific legislation in large provinces like Ontario, Quebec and elsewhere, advance planning is imperative.  Pet owners should discuss their last wishes for their pets well in advance with their intended caregiver and consider carefully the words they wish to use in a will to express their last wishes.  Even if non binding regarding to whom the pet will reside and how the pet will be cared for, by having such clause in a will, it shows the testator thought about the issue carefully and therefore it may likely be seen as a formal direction to the executors and trustees of a will.

With no specific pet trust legislation it is of paramount importance that pet owners clearly communicate their last wishes for their pets with their designated friend or relative and consider including precatory words in a will, expressing a testator’s non-binding hopes and desires with regards to the who and how of the maintenance of their beloved pet. While such clauses are not likely to have true legal force, simply due to their insertion in a will, they often carry great weight and act as a formal direction to executors of a will and future caregivers.  To make it stronger, precatory wording should prove to be very useful if the testator has discussed his or her wishes with the particular friend or relative in advance.  Make sure to discuss the standard of care you want for your pet after you’ve gone with your intended future caregiver.  A memorandum annexed to your will regarding care of your pet may also be used and your should be as specific as possible as to your wishes.

In some cases, pets are given away as a gift in a will to the intended future caregiver, possibly along with a generous monetary gift which is granted with the understanding that the monies are to be considered compensation for the future costs of care of your pet. Keep in mind that if you are gifting your pet turtle or parrot, the gift should be very generous indeed as those animals live for decades and you want to ensure your monetary gift covers the associated pet care costs.

Also remember that certain aspects of estate planning should be contemplated when consideration is given to the care of your pet upon the passing of  a testator, importantly, that courts will refuse to uphold provisions for pets that contravene estate and trust  law generally, and any clause that raise public policy concerns will also be struck.

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