Estate Planning Is Going to the Dogs (Cats, Birds .......)

The majority of Canadian households now include a pet. As the prevalence of pet ownership has grown, so has the importance that pets hold in our lives. The traditional, half-wild, barnyard dog or cat has become a member of the household and, for all intents and purposes, a member of the family.

People are attached to their pets, and are concerned that beloved animals be cared for after the owner's death. Provision for pet care following an owner's death  is becoming an increasingly common estate planning issue.

Legacy-for-Care

For reasons both practical and legal, it is not possible to name a pet as the beneficiary of a direct gift in a will. Legally, pets are property; they cannot be property owners. Nor is it possible to  establish a trust for a pet. In Canada, such a trust is considered unenforceable.

The typical way of providing for a pet in a will is to have the pet delivered to the estate trustee, who is charged with finding the pet a good home, and to provide a legacy for the person taking the pet. If that person declines, the trustee is directed to find someone else who is willing to give the pet a good home.

Another important consideration is the safety and care of the pet in the transition to its new home. In the confusion brought on by an unexpected illness, accident, or death, a pet can easily be overlooked. In a paper delivered at a recent Continuing Legal Education conference in Toronto, estates lawyer Mary MacGregor listed five steps that should be taken to ensure the pet survives the demise of its owner:

• Two responsible friends or relatives should be found as temporary caregivers. They should have keys, feeding and care instructions, the name and phone number of the vet, and information about the long term care provisions for the pet.
• Neighbours, friends, and relatives should know how many pets there are, and the names of the temporary caregivers.
• The pet owner should carry a wallet card listing the names and phone numbers of the emergency pet care givers.
• Notices should be placed on the doors and windows of a home, indicating how many and what types of pets are in the home, an alert to emergency response teams.
• On the inside of the front and back doors, emergency contact names and phone numbers should be listed.

But What If....?

What will happen if the person accepting the conditional legacy decides that he or she doesn't' want to care for the pet after all? Even if the person selected is completely trustworthy, it may only become apparent after the owner's death that he or she is incompatible with the pet, no longer physically capable of taking care of it, etc. Will the pet end up on the street? In the pound?

Because a trust for a pet is unenforceable, it is important that such a trust not be created in providing for a pet in a will. Accordingly, the estate trustee must not be saddled with the ongoing responsibility of ensuring that the selected caregiver lives up to expectations. Is there an alternative?

Pet Trusts

Some years ago, the limitations inherent in the legacy-for-care approach gave rise in the United States to a movement to legitimize trusts for pets. Over 30 states have enacted or plan to enact statutes that in some way recognize "pet trusts".  No doubt, many Canadian pet owners would welcome the enactment of such provisions in Canada.

Of course, pet trusts are not necessarily problem free. Indeed, they appear to give rise to many of the same sorts of problems that characterize trusts in general. There is the initial problem of selecting the trustee -- if he or she is also the residuary beneficiary, the pet's life expectancy may suffer. Conversely, if where the trustee is not the residuary beneficiary, the latter may question the reasonableness of expenses incurred on the pet's behalf. For example, in one Arizona case,  the court determined that the caretaker was acting in a clearly unreasonable manner when he purchased an automobile to transport the dog. The purchase of a washing machine to launder the dog's bedding was considered to be borderline.

Notwithstanding these and other problems, pet trusts have the undeniable benefit of allowing pet owners to appoint someone to care for their pets, knowing that person will ultimately be subject to the supervision of the courts in the exercise of their duties.

Unfortunately, pet trusts will probably not be available in Canada any time soon. In the meantime,  pet owners and their professional advisors must find other ways of responding creatively to this emerging need.