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I Love My Cat More Than You: Animals as property or sentient beings

My 16 year old cat, Caira, is among my most beloved family members. That is why it wasn’t very surprising to me to learn that New York City billionaire Leona Helmsley, who died in 2007, named her pet dog “Trouble” as the beneficiary of a 12-million dollar trust. Her two grandchildren who were excluded from her Will, however, were not as understanding.

The disinherited grandchildren challenged the validity of Trouble’s inheritance on the basis that their grandmother was not decisionally capable when she executed her Will. The Manhattan Surrogate Court ruled that the amount was excessive, and reduced Trouble’s inheritance to a measly 2 million dollars.

Unlike many States in the U.S., a pet cannot be named as a beneficiary of a trust in Ontario. Here, pets are considered “property” in the eyes of the law. Property does not have legal standing to enforce a trust, and pets cannot be named as beneficiaries in a Will because property can’t own property.

There is a way in which you can create a trust for the benefit of your pet, namely, if it identifies an individual as a beneficiary who can enforce the trust, and as long as the trust does not exist beyond the allowable perpetuity period.[1] Such a trust would essentially require the beneficiary to use the trust funds for the care and maintenance of your pet; however, there are a number of legal requirements that must be satisfied in order for this type of “pet trust” to be lawful. For a detailed discussion on the law of pet trusts, see K. Thomas Grozinger’s paper, The Beloved Pet – Considerations in Two Parts: Part II.[2]

The easiest way to ensure that your pet is properly cared for in the event of your death is to clearly express your wishes to your family and friends regarding the care and maintenance of your pet. Identify someone you trust who is willing and able to care for your pet, and canvass alternatives if that person becomes unwilling or unable in the future. If you struggle to find someone you trust enough with this task, you can always consider charitable organizations that might be able to help.

Once you have done that, you can include provisions in your Will that name the person and the alternates who you want to care for your pet. It is prudent to provide the new caregiver with a memorandum detailing instructions relating to your pet’s care. It is important to remember though, that the person you choose is not legally obligated to care for your pet even if it is outlined in your Will.

Similarly, you can name a beneficiary in your Will and stipulate that the funds he or she receives from your estate are to be used for the care and maintenance of your pet. Again, this does not legally bind the beneficiary to use the inheritance for that purpose, so it is important to choose the beneficiary carefully!

There is a trend in North America that calls into question the definition of animals as property, and recognizes animals as sentient beings. It will be interesting to see how this trend will impact estate planning and litigation in the future.

[1] K. Thomas Grozinger’s paper, The Beloved Pet – Considerations if Two Parts: Part II, (2011), 30 E.T.P.J. 129 (March 2011, vol.30, no.2, pp. 129-150) published by Canada Law Book, a Division of Thomas Reuters Canada Limited.

[2] Ibid.

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