Can You Leave Your Fortune to Your Cat?

Here at The Cat’s Meow we’re often asked by clients to give advice on how best to provide for their cats in wills and estate planning. Several Canadian lawyers have recently written blogs and articles discussing the subject, and so we’ve done the research and put together a short, informal guide to the ins and outs of estate planning for pets in Ontario.

Puss in Boots, a storybook cat, was willed to a miller’s son so poor he could hardly feed himself, let alone find fish for his cat. Lately though, some real-life pets have done a lot better than Puss out of their owners’ estates. Internet lists of the “World’s Richest Pets” finds Blackie, the Guinness Book of World’s Records wealthiest cat who in 1988 inherited $13 million from British antiques dealer Ben Rea. Then there’s Big Tibby, the 52-year-old tortoise who found himself $80,000 richer by the terms of his owner’s will and multi-millionairess Gigoo, a rare Scots dumpy hen, who in 2001 was left $15 million by British publisher Miles Blackwell.

But Ontario’s pet chickens shouldn’t start applying for their credit cards just yet. For one reason, lawyers do not recommend leaving large sums of money to pets. For another, as the law stands now in Ontario, animals cannot be named as the direct beneficiaries of a will. Companion animals here are not considered in law to be owners of property; rather they are the property of owners. Since property cannot own property, if you try to leave your home or money directly to your cat or dog, your will is likely to be deemed invalid or unenforceable.

Despite this restriction, many people wish to provide for their pets in the event they predecease them. In response to such requests, Canadian lawyers have come up with strategies by which a thoughtful pet owner can help ensure that their pets are cared for when they die and don’t (as many do) wind up in a shelter or (worse) on the street.

First, Make a Will

The first step, say the lawyers, is to make a will. This might seem obvious. But according to BMO Retirement Institute some 50% of Canadians have no will at all. Absent a will there is no provision whatsoever as to the custody and care of pets following your demise.

Pets as Presents

Once you’ve decided to make your will, the simplest option is to will the animal as a gift to a named relative or friend. A well-made will should also provide a set sum of money along with the pet to the new caretaker. The money is also a gift, but with the understanding, stipulated in the will, that the funds are to help pay for the care of the animal, such as feeding, veterinary bills, pet insurance and other costs.

Legally in Canada giving pets as gifts in wills is beset with all the problems of gift-giving in general. There is no provision in law that your friend will like his new pet. There is no guarantee that he will even accept the gifted animal, let alone care for her to your standards. I can make you a present in my will of my prized BMW for example, but it then is your car and you can do what you like with it: scrap it, sell it. Similarly there is nothing in law to prevent the caretaker from dumping the cat and spending the funds allocated for her care on a cruise or to renovate the kitchen.

Trusts and Pets

An alternative to willing your pet as a gift is to set up what is called a trust to provide for the care of the animal. A trust is a somewhat more complex legal arrangement; it costs more in legal bills, but better protects your pet’s interests.

A trust usually involves two parties: one to manage the trust (trustee) and one to receive the benefits (the beneficiary).

A trust names a specific person, say a relative, to be responsible for the pet’s housing, feeding and so on. A trustee is also named, responsible for doling out to the caretaker over time funds specifically set aside to care for the animal and for making sure the provisions of the will are followed in accordance with the pet owner’s wishes. At the animal’s death, the residual of the estate might go to a charity (a Charitable Trust) or be divided amongst specific persons (a Personal Trust).

It’s likely, for example, that some kind of trust arrangement was made for Red, an Ottawa tabby, who made the papers in 2005 when owner David Harper, a 79-year-old gardener, left his $1.1 million estate not directly to the cat, but in a fund administered by the United Church of Canada.

Because there are two parties involved and the trustee does not (presumably) have a direct interest in the funds, a trust does provides more protection for a pet than if the animal is handed over as an outright gift. Theoretically at least there is oversight: a trustee can stop the funds to a caregiver who fails to provide adequately for the pet or can take steps to remove the animal from his care.

In practice however, trusts, like wills, are unlikely in fact be enforced, when it comes to pets. If a child is not being properly cared for by his appointed guardian, a relative or even the state might take up that child’s defense. It’s much less likely that anyone would sue on behalf of a pet. In fact it’s a far better bet that a relative would go to court against the animal, to contest a will that leaves a large sum of money for the care of the pet (and away from the family), and in these cases the court may reduce the amount set aside for the pet in favour of the family.

Another problem with trusts is that there may be time limits. In Ontario a trust usually lasts for a set period of time — 21 years — after which time the funds are turned over to their beneficiaries. Two decades exceeds the lifespans of most cats and dogs; but for a horse or a parrot, for example, a 21-year trust may not be time enough to see the animal out.

Better than Nothing

Despite difficulties of oversight and enforcement, lawyers experienced in estate planning for pets stress that by setting out your intentions in a formal document, such as a will, or by setting up a trust, you are more effectively guarding your pet’s interests than if you make an informal arrangement with a friend or relative. Expressing your intentions in a will can alert your executor and your family to your wishes with regards to your animal. An informal agreement settled privately is more likely to be disregarded.

Estate law, especially trust law, is full of pitfalls for the unwary, and drafting wills is a business best left to lawyers. In the best instance you should try and find a lawyer with some experience in pet bequests to help you with estate planning. Do-it-yourself wills are dodgy and unpredictable and can create problems for pets and families.

 

Tips from Lawyers

Lawyers who have written on estate planning for pets offer a few tips that can help make estate planning for animals more likely to succeed.

• Choosing your caretaker is the most important aspect of estate planning for pets. Lawyers, who know all about families’ bad behaviour when money is involved, advise that you choose your caretaker very, very carefully. Identify a trusted family member, friend or organization who is most likely to truly care for your pet when you are gone.
• Make sure your caretakers know they are named in the will. Discuss with your chosen friend or relative your standards of care for the animal. You don’t want to spring a possibly unwanted pet on someone or impose standards so high as to be unmanageable.
• Don’t be too lavish. Don’t build incentives for family members to contest the will. If the cat is in direct competition with family members over large amounts of cash, the family can go to court on the issue, and the court may reduce the amount in the family’s favour.
• Make the bequest straightforward – assign a certain amount of money to look after the pet for its lifetime. One lawyer, Barry Seltzer co-author of Fat Cats & Lucky Dogs: How to Leave (Some of) Your Estate to Your Pet notes that in his experience, most people leave about $10,000 to $15,000 to care for a pet.

This report is for informational purposes only and is not and should not be construed as, professional advice to any individual. Although we cannot give recommendations as to specific lawyers in Ontario, the list of references below contains the names of some lawyers who have blogged or written about pets in wills.

References and Further reading:

Barry Seltzer and Gerry W. Beyer, Fat Cats and Lucky Dogs- how to leave (some of) your estate to your pet. Prism Publishing Inc. Toronto, 2010.

Bayer, G. Animal and Legal Center, 2000. Pet Animals: What Happens When Their Humans Die? [https://www.animallaw.info/article/wills-trusts-pet-animals-what-happens-when-their-humans-die]

Boux B Estate planning: Is your dog or cat in the family will? The Globe and Mail Mar. 09, 2016  [http://www.theglobeandmail.com/globe-investor/retirement/retire-family/pets-thrown-a-bone-in-family-wills/article29114263]

Conduct Law. Personal Trusts in Estate Planning. January 9, 2017 [http://www.conductlaw.com/personal-trusts-in-estate-planning/] Deckha MD.  Property on the Borderline: A Comparative Analysis of the Legal Status of Animals in Canada and the United States. 2011 [https://works.bepress.com/maneesha_deckha/1/]

Dube, Rebecca. How to give Fido the mansion after you die. Globe and Mail. June 27, 2010 [http://www.theglobeandmail.com/life/relationships/how-to-give-fido-the-mansion-after-you-die/article4261008]

Duhaime, L. Introduction to the Law of Trusts: September 26, 2012 [http://www.duhaime.org/LegalResources/ElderLawWillsTrustsEstates/LawArticle-336/Introduction-to-the-Law-of-Trusts.aspx]

Flannery, Diana. Estate Planning and Animals – Things May be Changing! Ontario Bar Association. 21 octobre 2015 [https://www.oba.org/Sections/Animal-Law/Articles/Articles-2015/October-2015/Estate-planning-and-animals-%E2%80%93-things-may-be-changi?lang=fr-CA]

Hirschfeld, Rachel Estate Planning Issue Involving Pets Animal Law; 2009. 26:16-20 [http://www.jstor.org/stable/23673609]

Holzapfel O. Sheena Lessard S, and Svozilkova, K.  Protecting Animals in Ontario: Time to Adopt Pet-Trust Legislation  Estates,Trusts & Pensions Journal. 2016, 35: 311-332

Lawyer’s Weekly. Consider a ‘purpose trust’ to provide for your pet. Advocate Daily. [http://www.advocatedaily.com/consider-a-purpose-trust-to-provide-for-your-pet.html]

Popovic-Montag, S and Hull, IM.  Your Estate Planning Should Include Pets. Huffington Post 2013. [http://www.huffingtonpost.ca/suzana-popovicmontag/pets-will_b_3934832.html]

Popovic-Montag, S and Hull, IM. Huffington Post. Why You Should Consider Planning Provisions For Your Pets. 2015. [http://www.huffingtonpost.ca/suzana-popovicmontag/estate-planning-pets_b_8682480.html]

Poyser, J. An Estate Plan Gone to the Dogs. 2009 Tradition Law. [http://www.traditionlaw.ca/article-7-an-estate-plan-gone-to-the-dogs]