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In re Estate of Howard Brand (1999)

Plaintiff's Attorney:   Coalition to Save Brand's Horses: Alan A. Bjerke (Burlington, VT)

Defendant's Attorney:   Attorney for Estate: Thomas E. McCormick (Burlington, VT)

3rd Party Amicus or Intervening Party:   Derek St. Pierre (In Defense of Animals, San Francisco, CA)

Topic: Wills and Trusts

Case File #:   28473

Jurisdiction:   Vermont - Chittenden County Probate Court

Year Case Filed:   1999

Printible Version

This Vermont case considers the effectiveness of a clause in a testator’s will that directs his executor to destroy any animals that he owns at the time of his death.  The testator, Howard Brand, was believed to have owned four horses and one mule at the time of his death.  An unincorporated association entitled, “The Coalition to Save Brand’s Horses” was formed in response to this unusual post-mortem request, and sought to intervene in the lawsuit.  Interestingly, in its memorandum of law in support of its motion to intervene, the Coalition argued that, because two members were entities recognized as having the lawful authority to interfere with acts of cruelty to animals, the Coalition had a recognized legal interest to intervene in the action.

The Coalition then filed a motion for a preliminary injunction to stop the destruction of the horses (necessary to prevent “irreparable injury”).  In support, the Coalition noted that testamentary freedom is not limitless, and in fact may be curtailed where it contravenes public policy.  In fact, testamentary directives to destroy other forms of property have been similarly declared void, and other jurisdictions found clauses to destroy animals invalid.  The motion recognizes an interesting tension inherent in this action; Brand would have been legally permitted to humanely dispose of his animals if he were alive.  However, the Coalition argues that such an action if transferred to an executor may itself violate public policy.

In opposition to the motion, the attorneys for the estate contended that it would be contrary to law to deny Brand the right to carry out his testamentary wishes.  Since Brand’s intentions were clear by the duly admitted will, and no cases in Vermont establish that such a clause is contrary to public policy, the court is obligated to give the clause full force and effect.  The estate also focused on the admitted fact that Brand would have been able to euthanize the animals if he were still alive, and members of the Coalition themselves practice euthanasia at animal shelters.

In response, the Coalition argued that legislative grant of authority given to a testator that gives the right to “dispose” does not transform this power into the right to “destroy” property.  The Coalition further notes that the right to euthanize unwanted animals is clearly distinguishable from enforcing the clause at bar to destroy these horses for which homes are readily available.  Cases from other jurisdictions clearly provide that destruction of healthy animals contravenes public policy.

In Defense of Animals, a leading national non-profit organization dedicated to ending the institutionalized exploitation and abuse of animals, filed an amicus brief in this case.  The organization discussed the historical context of animals’ legal status as property.  It further contended that executing the horses to effectuate the testator’s intent was contrary to public policy.

In a clear case of first impression in Vermont, the Chittenden County Court held that the clause as set forth in Brand’s last codicil mandating the destruction of his animals is void as contrary to public policy.  The terms of the will were thus amended pursuant to the doctrine of cy pres to allow the continued existence of the horses (notable is the fact the court would oversee ownership of the animals to prevent the neglect or cruelty over which the testator was apparently concerned).  The court seemed particularly convinced by similar cases in other jurisdictions that found such mandates for destruction of animals were against public policy.  Further, the court considered the unique status of animals, especially those who are considered companion animals in our society.  This part of the opinion borrowed heavily from the amicus’ recitation on the historical property status of oppressed groups in society and how the property status of animals is analogous.  Indeed, the court noted that such a distinction is reflected by the fact it received more than fifty letters from concerned citizens regarding the destruction of the animals, but none which concerned the clause that called for the destruction of Brand’s perfectly good Cadillac.

Chronology of Documents:

Motion to Intervene (02/21/1999) (pdf. file 166 KB)

Motion for Preliminary Injunction (02/21/1999) (pdf. file 252 KB)

Memorandum in Support of Motion for Preliminary Injunction (02/1999) (pdf. file 191 KB)

Amicus Curiae Brief by In Defense of Animals (03/1999) (pdf. file 126 KB)

Memorandum in Opposition to Motion for Preliminary Injunction (03/04/1999) (pdf. file 148 KB)

Intervenor’s Reply to Executor’s Memorandum in Opposition (03/12/1999) (pdf. file 260 KB)

Findings of Fact, Conclusion of Law, and Order of Chittenden County Court (03/17/1999) (pdf. file 193 KB)


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