This paper examines several issues related to estate planning and companion animals. Included in the discussion are pet trusts, new provisions of the Uniform Probate Code, and will-stipulated euthanasia of pets.
If you think that pets are simply those animals that we permit to live in our backyards, think again. According to a popular magazine:
More than two-thirds of pet owners say they consider their pet as a member of the family. Here are some of the things they do for their pets:
Brag about their pets to others 80%
Allow their pet to sleep with them 79%
Talk “baby talk” to pet 50%
Carry a picture of their pet in their wallet 37%
Take off work to be with a sick pet 31% [i]
Pet owners who have done or would consider doing this for their pets:
Arranging pet day care 27%
Including their pet in their will 12%
Buying health insurance for pets 8%
Counting pet in the number of withholdings claimed for IRS 3% [ii]
The status of companion animals is evolving in our society. In many instances, pets have moved to the forefront of our lives and are considered to be valuable members of our families.
The steps that are taken to protect children are often taken to protect pets as well. During a divorce, many people fight for pet custody. And in many instances, people make provisions for their pets in their wills. We want to make sure that our pets are happy and healthy and taken care of, even in the event that we can no longer be with them.
As their status in our families has risen, so has their place in our legal system. Once regarded as a piece of property, companion animals had no rights or interests. However, more and more courts are taking animal welfare issues seriously. As a result, attorneys are finding themselves in new and unique situations as they draft these documents or champion their causes in the courtroom. But some attorneys were ahead of their time. When the late Senator George Vest, of Missouri, was a young lawyer, he represented a client who was suing a neighbor for killing a pet dog. These are the memorable words that he said to the jury:
The best friend a man has in the world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and good name, may become traitors to their faith.
The money that a man has he may lose. It files away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog.
When all other friends desert, he remains. When riches take wing and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives his master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight his enemies, and when the last scene of all comes and death takes the master in its embrace and his body is laid away, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even unto death. [iii]
A. AN OVERVIEW
There has been quite an evolution in the area of pet trusts. In the beginning they were impermissible. Simply put, pets could not be beneficiaries. Later, honorary pet trusts became permissible, but there were no guarantees that the animal would ultimately receive the gift. It was up to the whim of the trustee whether the animal would actually acquire the intended benefits because there was no legal enforcement. Now, not only are pet trusts permissible, but in many states there are statutes in place so that courts must enforce them. In those states, the trustee does not have the discretion to use the money as he chooses. The court will ensure that the funds are used for the benefit of the animal. The courts in the states that do not have specific pet trust statutes can look to the states that do when this topic is before them. Since this is no longer a novel issue courts can turn to their sister states for guidance.
B. PETS CANNOT BE BENEFICIARIES
Many times people want to make provisions for their pets so that they will be cared for even unto the master’s death. And according to statistics, twelve percent of us have done so by naming our pets in our will. But up until recent years it was not permissible to do so.
One reason that pets were not allowed to be beneficiaries is because pets were considered property and you could not leave property to property. Just as you cannot leave your ottoman to your couch, you could not leave your money to your dog. Simply put, dogs cannot be beneficiaries. That was the court’s holding in the case of Roxy Russell, a nine-year old Airdale dog named in her owner’s will. On March 18, 1957, Thelma Russell drafted a holographic will on a small card that read:
“I leave everything I own real and personal to Chester H. Quinn & Roxy Russell.”
The court had no problems with Mr. Quinn as a beneficiary, after all he was a close human friend of Ms. Russell, but it disallowed the provision for Roxy. Without further explanation, the appellate court held, “As a dog cannot be the beneficiary under a will, the attempted gift to Roxy Russell is void.” [iv] Originally, the trial court used extrinsic evidence to determine that Ms. Russell intended to create a trust for Roxy with Mr. Quinn as executor.” [v] It therefore held the will as valid.
However, on appeal the court reversed that judgment and deemed that the language of the will was ambiguous and accordingly determined that Ms. Russell died intestate. Through intestate succession, her entire estate, including the intended gift to the dog, was divided between Mr. Quinn and Georgia Russell Hembree, Ms. Russell’s only living heir. [vi]
The lower court attempted to ascertain Ms. Russell’s motivation for including her dog in her will. Upon the determination that she did so for humanitarian reasons, that court attempted to enforce her wishes. However, the appellate court seemed to be more concerned with form than substance. Since the form was invalid, the will was invalid as well. The rules of intestate succession dictated who would therefore be the legal beneficiaries and no further provisions were made for Ms. Russell’s intent or the welfare of Roxy. After all, dogs cannot be beneficiaries. [vii]
C. THE RULE AGAINST PERPETUITIES
But perhaps the main reason that will provisions for pets failed was due to a more concrete legal explanation, namely the violation of the rule against perpetuities. This is the principal that, “no interest in property is good unless it must vest, if at all, not later than twenty-one years, plus period of gestation, after some life or lives in being at the time of creation of interest.” [viii] Put simply, “this rule means that in order for a trust to be valid, the disposition of the trust property must be settled by twenty-one years after the death of the measuring life, the life of the appropriate person who was alive at the time the trust was created . . . And an animal’s life cannot be used as a measuring life.” [ix]
However, a growing number of states have repealed the rule against perpetuities, which was a significant pet trust hurdle. In his article, “What Happens When Their Humans Die?”, Gerry Beyer surmises, “This action removes a major roadblock from a court’s ability to approve trusts for specific animals, although it is unlikely that the legislature repealed the rule with animal gifts in mind.” [x]
D. HONORARY TRUSTS
People began to create honorary trusts for their pets as a means to provide for them, yet lawfully circumvent the legal roadblocks. But these early honorary trusts met with hurdles that continued to prevent pets from actually receiving their intended inheritances. In the case of Searight the court touched on one such problem in its definition of an honorary trust. It explained that this type of trust is “one binding the conscience of the trustee, since there is no beneficiary capable of enforcing the trust.” [xi] The trustee is bound by conscience, not by law. Since he may have no affection toward the animal, it might be more convenient to just rid himself of this imposition and return the money to the estate. There is nothing to prevent him from doing so because he would be acting within his legal rights as a trustee. [xii] Since these trustees were permitted to exercise an enormous amount of discretion, the recipient pets were completely at their mercy. The courts did not step in to enforce the provisions and ensure that trustee was properly caring for the animals.
E. THE NEW AND IMPROVED UNIFORM PROBATE CODE
But all that changed in 1990 when the National Conference of Commissioners on Uniform State Laws revised the Uniform Probate Code to specifically allow for pet trusts. [xiii]
Section 1-907 states in part:
(b) [Trust for Pets.] Subject to this subsection, a trust for the care of a designated domestic or pet animal and the animal’s offspring is valid. Except as expressly provided otherwise in this section the trust instrument:
(1) No portion of the principal or income may be converted to the use of the trustee or to any use other than for the benefit of the covered animal.
(2) The trust terminates at the earlier of  years after the trust was created or when no living animal is covered by the trust [xiv]
By adding this section, the legislature made pet trusts legitimate in the eyes of the court.
“This means that the trustee no longer has the discretion of whether to enforce the trust. The trustee must administer the trust and make distributions for the benefit of the pet. If the trustee refuses, the court shall appoint a successor trustee to administer the trust.” [xv] Pet trusts were to be recognized as legally enforceable instruments. The courts could now step in and enforce the provisions if the trustee was not using the estate funds for the care of the animals. Finally, there seemed to be a solution so that pets could receive their intended inheritances.
But there is one catch; the revised Pet Trust provision is optional. Since the enforcement of pet trusts might be too untraditional or radical for some states, the Commissioners left it up to the states to enact it or not. [xvi] Consequently, states run the spectrum from those that have no statutory pet provisions at all, to those that have adopted the specific §2-907 language into their own probate codes.
F. MICHIGAN AND A FEW OTHER STATES
Michigan is one of the states that has enacted pet trust statutes into law. M.C.L. §700.2722 pertains to pet trusts, it states in part:
Sec. 2722. (2) Subject to this subsection and subsection (3), a trust for the care of a designated domestic pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor’s intent.
(3) In addition to the provisions of subsection (1) or (2), a trust covered by either of those subsections is subject to the following provisions:
(a) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to a use other than for the trust’s purposes or for the benefit of the covered animal. (Emphasis added)
Michigan appears to be way ahead of the curve, not only for its implementation of the pet trust provision but also by specifically permitting the courts to use extrinsic evidence to determine the testator’s intent. In the event that the language of the will is ambiguous or unclear, Michigan courts will look beyond the will to ascertain the decedent’s wishes. Unlike the court in Russell , Michigan courts will not automatically declare the will to be void and allow the rules of intestate succession to dictate the distribution of assets.
Other states, while not adopting the specific §2-907 language, have enacted their own versions of pet trust statutes. In Tennessee, trusts for the care of animals can be found in Tenn. Code Ann. 35-50-118 which states:
(a) Any gift or devise under a will or trust having as its object the humane treatment and care of a specific animal or animals designated by the donor and testator shall be valid, even though it creates a perpetuity in such animal or animals, or creates a condition subsequent that must be fulfilled before a person is entitled to the outright receipt of the gift or devise. Such a gift or devise shall be considered an honorary trust, that is, one binding the conscience of the trustee, since there is no beneficiary capable of enforcing such a trust.
(b) Such gift or devise shall provide for the appointment of a trustee to carry out the provisions of the trust, but in the event that no trustee or successor trustee is named, the person designated as donee or devisee of such a gift or devise, or in the case such person is a minor, then the minor’s court-appointed representative, shall serve as trustee and hold such property in trust for the benefit of such animal or animals.
c) Any such trust shall terminate any conditions shall be extinguished on the death of such animal or animals or as provided by will or trust, but in all events, any such trust shall terminate twenty-one (21) years after the death of the donor or testator.
Notice however that Missouri’s statute does not require that the pet be specifically designated.
That version can be found under 456.055 R. S. Mo. which states:
A trust for care of pet animals or other lawful specific noncharitable purpose, society or organization may be carried out by the intended trustee or a successor trustee for twenty-one years or any shorter period specified by the terms of the trust although it has no ascertainable human beneficiary or might, by its terms, last longer than the period of the rule against perpetuities.
California’s pet trust does require that the pet be specified, however, it does not contain a twenty-one year time frame. That version can be found under California Probate Code 15212 , which states in part:
A trust for the care of a designated domestic or pet animal may be performed by the trustee for the life of the animal, whether or not there is a beneficiary who can seek enforcement or termination of the trust and whether or not the terms of the trust contemplate a longer duration.
G. HOW TO SET UP A PET TRUST
Whether the pet owner lives in a state that has a specific pet trust statute or not, there are steps that can be taken so that their wishes are more likely to be followed. Michigan attorney, Lauren Underwood, has created a “Sample Pet Trust” which can act as a guide. (See attached).
Her model contains several sections that cover areas such as trustees and representatives, court supervision, and accountings. Ms. Underwood’s sample also contains a section entitled “Optional Provisions” that names the recipient of the residue of the trust in the event that the pet dies before the funds are exhausted.
According to Gerry Beyer, the first thing to do is to select an appropriate caretaker for the pet. [xvii] This must be someone who is willing and able to care for the animal, and in a way that is acceptable to the owner. Make sure that the pet and the caretaker get along harmoniously. According to Mr. Beyer, the owner should select several alternative caretakers in the event that the designated caretaker is unable to serve for the duration of the animal’s life.
H. THE TRUSTEE
The next step is to bequeath the animal to a trustee. [xviii] Keep in mind, the trustee and the caretaker should never be the same person. A system of checks and balances with regard to financial accountability is in place when two separate people act as trustee and caretaker. One is in charge of the money and the other is in charge of the care. There should be specific directions that the trustee should deliver the animal to the caretaker.
I. THE AMOUNT OF MONEY
Next, the owner should determine an appropriate amount of money to stipulate for the animal. “The factors to consider when making this decision are the type of animal, the animals’life expectancy, the standard of living the owner wishes to provide for the animal, and the need for potentially expensive medical treatment” [xix] The owner should be careful not to leave an excessive amount of money. This will trigger heirs and beneficiaries to contest the will.
Oftentimes, courts have the power to reduce the gift if it is deemed to be an unreasonable amount. Such was the case of the will written by Florence Lyon. [xx] Her will directed that the principal or income of her estate was to be used for the care of her six dogs and four horses, and the residuary was to go to Princeton University. [xxi] At the time of her death, the income was deemed to be approximately $40,000 to $50,000 a year. Clearly this is an excessive amount of money to care for these animals, but there was language to suggest that Ms. Lyon might not have had any idea how large her estate was or how much it would cost to care for these animals. [xxii] The court determined that the life expectancy for them was anywhere from one to twenty years. It further ascertained that, “It will take five acres of land, a $22,000 shelter and $5,000 a year to care for the presently living animals.” [xxiii] With this information in mind, the court held that the amount indicated by the testator was excessive. It modified the provision by directing the executors to either reserve $150,000 to be held for the care of these animals or give the entire residuary to Princeton University immediately but with an agreement that Princeton provide the care for these animals. [xxiv]
While an excessive amount of money could lead to court interference, an amount too small to properly care for the animal could lead to financial hardship on the part of the caretaker.
Testators should not only determine an amount of money that is reasonable to cover day to day maintenance but also factor in expenses for emergency medical care and hospitalization.
J. THE TYPE OF CARE
Another factor to consider when creating a pet trust, is the type of care desired for the pet.
The owner should leave detailed instructions regarding food, housing, grooming, medical care, and burial or cremation. [xxv] According to Mr. Beyer, the owner should also determine the method of distribution form the trust. Should it be a lump sum or a fixed amount each month? The amount distributed should be equal to the amount necessary so that the caretaker does not receive a windfall if the expenses are less than expected. On the other hand, the owner should be sure that the sum is enough so that the caretaker does not have to absorb the costs if the expenses are more than anticipated. [xxvi] Provisions should be in place so that the caretaker is reimbursed for any out-of-pocket expenses that might exceed the normal distribution. The caretaker should always be required to submit receipts to the trustee on a periodic basis. And the trustee should always review these receipts to make sure that the expenses are appropriate. It is also a good idea to require the trustee to make regular inspections at random times to determine the animal’s physical and psychological condition.
Finally, the owner should designate a remainder beneficiary. “The pet owner must be cautioned not to leave the remaining trust property to the caretaker, because the caretaker would then lack a financial motive to care for the animal and thus might accelerate its death to gain immediate access to the trust corpus.” [xxvii]
K. IDENTIFY THE PET
Another good idea is for the owner to specifically identify the designated pet in order to prevent fraud. Mr. Beyer suggests methods such as veterinary records including pictures, microchip implants and DNA samples. [xxviii] All of this is encouraged in order to prevent an unscrupulous caretaker from replacing the specified animal with another so that he may continue to receive benefits. According to a report, “a trust was established for a black cat to be cared for by its deceased owner’s maid. Inconsistencies in the reported age of the pet tipped off authorities to the fact that the maid was on her third black cat, the original long since having died.” [xxix]
L. A FEW SUCCESSFUL CASES
Now that we have examined instances in which the trust failed, let's turn to some successful cases. The first enforced pet trust in this country can be found in the will of Mrs. Bessie White Burgess. [xxx] In her will, Mrs. Burgess, left her entire estate to her sister, her dog and her church. However, there was some ambiguity regarding the order in which she wanted it devised. This provision of her will read,
I write this as my last will. I give my sister, Mrs. Minnie Willett, everything I have at my death for her life, at her death it is to go to the Hopewell church for a fund to be known as the ‘Quincy Burgess Fund’ to be used for the church, with the exception of $1,000.00, which is to be used for the support of our dog, ‘Dick,’ if the interest is not sufficient for him to be kept in comfort, that is being well fed, have a bed in the house by a fire and treated well every day, that the principal be used to such a sum so it will last his lifetime. [xxxi]
A literal interpretation of this provision implied that Mrs. Burgess wanted the estate to go to her sister, then the church, and then the dog. But that is inconceivable, which is exactly what her heirs said when they claimed that this provision was void for indefiniteness and uncertaintly.
The lower court agreed. It held that the support of the dog must fail “because (1) there is no trustee; and (2) a dog cannot take as a divisee under our law.” [xxxii] However, this was reversed by the appellate court, which intentionally transposed the provision so that its meaning could be better ascertained. This court inserted the clause regarding the dog before the clause regarding the church so that the estate would pass to the sister, and $1,000 could be used for the dog, and then the remainder would pass to the church. “In the remaining $1,000.00 a trust is created for the use and benefit of the dog Dick, which will not be allowed to fail for want of a trustee, in this case where a humane purpose is sought to be accomplished.” [xxxiii] This is an early example of the court’s use of extrinsic evidence to determine and then enforce the testator’s intent.
In a more recent situation, forty-nine year old Manhattan bank executive Kim Southworth asked her doorman, Humberto Rubet, if he would mind if she put him in her will to take care of her six-year old cat, Ming. Mr. Rubet had no objections, in fact he was honored, especially since his ten-year old daughter, Elizabeth, loved Ming. When Ms. Southworth died of a heart attack Ming went to live with Mr. Rubet and his family. But he was shocked to learn that the cat came with a $200,000 trust fund, the principal of which will go to Mr. Rubet when Ming dies. The executor is considering reducing the trust fund to $100,000 because it originally provided for two cats, one of which predeceased Ms. Southworth. Even if the fund is reduced, Ming will still be able to pay his own way. [xxxiv] An inquiry of Lexis-Nexis did not reveal the outcome of this case.
M. CELEBRITIES AND THEIR PET TRUSTS
Celebrities often draft their wills to make lavish provisions for their pets. It is reported that actress Natalie Schafer, who played “Lovey” on Gilligan’s Island left her fortune to her dog.
Betty White reportedly has arranged so that her $5,000,000 estate will be left for the benefit of her pets. And Doris Duke, the daughter of “Buck” Duke who founded the American Tobacco Company and Duke University, left a $100,000 trust for her dog. [xxxv]
But the most interesting case of a celebrity pet trust fund was that of British pop star Dusty Springfield. She died of breast cancer at the age of fifty-nine in March of 1999, leaving behind a thirteen-year old cat, Nicholas. According to her agent, “The cat meant everything to her and it was a true member of her family.” In fact, Ms. Springfield’s will left some very specific directions for the future care and lifestyle of this cat. The will specified that Nicholas’s bed was to be lined with Ms. Springfield’s nightgown and that her recordings were to serenade him to sleep each night. The will also required the continuation of Nicholas’s special diet of imported American baby food. Lee Everett-Alkin, a longtime friend of Ms. Springfield will be Nicholas’s caretaker. And she will also be the one to arrange a "wedding” between Nicholas and her cat, Purrdie. She commented, “I’m serious, it’s what Dusty wanted.” [xxxvi]
A. WHY THEY DO IT
Just as there are instances of wills that stipulate that animals are to be cared for in the event that their owner dies, there are also instances of wills that stipulate that the animal is to be euthanized in the event that their owner dies. Although it seems ironic, the evidence indicates that these people are motivated by good intentions. In each and every case, the testimony revealed that the testator truly loved their pets. However, they believed that no one would take care of their pets and this was the only way to save them from inhumane treatment. In hindsight, their beliefs turned out to be false because once the public was made aware that the animals were to be destroyed, numerous people stepped forward to take them. In fact, usually there were so many people who wanted the animals, an agency had to be appointed to determine who would be the best caretaker among the candidates.
B. QUESTIONING THE COURT’S JUDGMENT
The proponents of these euthanasia clauses have often questioned the court’s judgment.
If the purpose of writing a will is so that your final wishes will be carried out, then why is a court permitted to step in and interfere? Shouldn’t a person die secure in the knowledge that his or her last wishes will be honored? Why should the court prevent a pet from being euthanized at the directive of the owner’s will if the owner could have directed the euthanasia if he was alive?
And finally, why should the public’s emotions be permitted to influence the outcome of these probate matters?
The answers to these questions can often be found within the court opinions. In most cases the judges explained their rational for voiding these provisions. One common theme among their explanations was that of the testator’s actual intent. They only requested that their pet be euthanized in order to prevent it from suffering. Since their actual intent was to prevent suffering, the courts were able to bring this about in more humane methods rather than euthanasia. But even if the courts did not concern themselves with the testator’s intent or the humane treatment of animals, they were still able to void these euthanasia provisions because sometimes a testator’s request must yield to an established rule of law or public policy if there is a conflict.
C. BRICKLAND AND SUNNY BIRCH
Such was the case of two Irish Setters named Brickland and Sunny Birch. Their owner, Ida Capers, died January 27, 1963, and stipulated in her will:
“I direct that any dog which I may own at the time of my death be destroyed in a humane matter and I give and grant unto my Executors hereinafter named full and complete power and discretion necessary to carry out the same.” [xxxvii]
By all accounts Ms. Capers loved these dogs. “She was interested that they would be given the same care after her death that she gave them while she lived. She evidently feared that either they would grieve for her or that no one would afford them the same affection and kindness that they received during her lifetime.” [xxxviii] Her veterinarian, Dr. John P. Childress, testified before the court regarding the attention and affection that Ms. Capers showed her dogs.
“Her home was for her dogs. She had kennel facilities. The car was for the dogs, when she had a car. She had a separate area of the basement of her home, for grooming, bathing and taking care of these two dogs. The were her entire reason for her existence.” [xxxix]
When the community learned that the dogs were to be euthanized, they sent letters to the court pleading for the dog’s lives. In fact, the public outcry was so great that the Pennsylvania Attorney General’s Office stepped in to intervene. [xl] Special Assistant Attorney General William Howard Colbert advised the court that there are some instances when a court may make an alleged public policy the basis of judicial decision and this he believed was one of them. The court agreed. “Here, there is a unanimity of opinion that to destroy these two Irish Setters that have displayed nothing but fidelity and affection, would be an act of gross inhumanity. In fact, the court agreed to make the letters and newspapers articles a part of the record. [xli] In the end, the court held, “. . . it is ordered, adjudged and decreed that the fifth paragraph of decedent’s will providing for the destruction of the two Irish Setters, “Brickland” and “Sunny Birch”, is void as not being within the purview of the Wills Act of the Commonwealth of Pennsylvania, and being against the public policy of the Commonwealth of Pennsylvania.” [xlii]
As a side note, the dogs went on to live with Mr. and Mrs. Thomas Miller who had been taking care of them for the past 98 weeks. The court was willing to give the Miller’s $2,500 from Ms. Caper’s estate to reimburse them for the past expenses, however, Mr. Miller testified that he would waive the cost of keeping them for the privilege of obtaining their ownership. [xliii] So much for Ms. Caper’s belief that no one would take care of these dogs.
D. SHOOT THE HORSES
Another interesting case was that of Clive Wishart, who directed that his four horses, Barney, Bill, Jack and King, be shot and buried after his death.
“I direct and declare that my Executors have my horses shot by the Royal Canadian Mounted Police and then buried.” [xliv]
This matter came to the attention of the courts because the R.C.M.P. informed the executors that they would not do as Mr. Wishart directed them without a court order. Another reason the court became involved was because of strong public protest. The subject was debated in both Canada and the United States. Petitions were signed and letters were written to the court. [xlv] Here are the words of one such letter written by an elementary school child:
Please don’t let anyone kill those horses. I love horses but my dad won’t let me have one. I will be sad if they get killed.
From Jennifer [xlvi]
Despite all this, the court determined that its decision would not be based on sentiment.
Its decision would instead be based on legal principles. [xlvii] Luckily for the horses, the court decided to use extrinsic evidence that would ultimately allow it to void the euthanasia provision of the will. The court determined that Mr. Wishart treated these horses as pets and did not want them to fall into the hands of anyone who might abuse them. His sister told the court that Clive loved his horses and treated them royally. [xlviii] The court stated, “The evidence is clear that he had a great love for his horses and he was undoubtedly unaware that others would be prepared to provide and care for them and not abuse them.” [xlix] The court went on to say “. . . nor do I intend in any way to direct any criticism toward him. I think that he thought he was doing what he considered best for his horses.” [l] Therefore, the court held:
In my opinion, the destruction of four healthy animals for no useful purpose should not be upheld and should not be approved. To destroy the horses would benefit no one and would be a waste of resources and estate assets even if carried out humanely.
It is my conclusion that to destroy Barney, Bill, Jack and King as directed in the Will at this time and in the present circumstances would be contrary to public policy. The direction in the Will is therefore void.” [li]
The court directed the New Brunswick S.P.C.A. to determine who would be best suited to take over ownership of the horses. It provided that agency with a list of conditions to follow when making its decision. The final outcome would be determined at a later hearing.
E. DESTROY THE HORSES AND THE CADILLAC
But one of the most interesting wills to stipulate the destruction of pets was that of Howard Brand. He died on January 2, 1999, fully aware that his death was imminent. One month before he passed away, Mr. Brand amended his will to include the stipulation that his
horses be destroyed [lii] and his Cadillac be crushed. Although there was not much public outcry about the car, the citizens rallied to protect the horses.
The first to contest this will was Mary Ingham, a housewife and neighbor of Mr. Brand. [liii]
She made the initial court inquiries and learned that this provision actually was a part of Mr. Brand’s will. Although she did not know to intervene, she knew she had to do something. Once the story was printed in the local newspaper, the support was overwhelming. Several organizations became involved with her crusade and they formed the ad hoc group, the Coalition to Save Brand’s Horses. [liv] Among the members were The Vermont Humane Federation, Inc., The Vermont Volunteer Services for Animals Humane Society, The Humane Organization for retired Standardbred Equines, and the Student Animal Legal Defense Fund of the Vermont Law School. [lv] They filed a Motion for Preliminary Injunction and a Motion to Intervene. The Coalition also received more than eighty phone calls and letters from people willing to adopt the horses. [lvi]
Thomas McCormick was the attorney who drafted Mr. Brand’s will. He believed that the will was valid and the directives were legal, therefore he filed a Memorandum in Opposition to Motion for Preliminary Injunction so that the court would carry out Mr. Brand’s final wishes.
Foremost, was the idea that the court had no legal authority to disregard the provisions of Mr. Brand’s will. “There is no statutory, constitutional or public policy for basis for ignoring Mr. Brand’s Directive.” [lvii] He claimed that Mr. Brand’s intent was controlling and that those who opposed the destruction of the animals were “officious intermeddlars.” [lviii] Mr. McCormick believed that they were third parties who did not have standing to challenge the provisions of the will. He went on to say that their claims were based in “fluffy, amorphous assertion of public policy” [lix] and that if they were to succeed in prohibiting the provisions of this will, then the door would be open to challenge all wills. [lx] Mr. McCormick also believed that he had public opinion on his side because he received more than ten phone calls from individuals who believed that the
provisions were appropriate. He also made the argument that euthanasia is permitted by statute. [lxi] In fact, some of the very individuals who opposed the euthanasia provision in Mr. Brand’s will, practice euthanasia themselves, namely the Vermont Humane Federation, Inc. To him it appeared contradictory that it would have been permissible for Mr. Brand to euthanize his horses if he were alive, but somehow this became impermissible upon his death.
Courts in Vermont were already familiar with the precedent that a testator’s intent can be frustrated when their wishes are against public policy. Therefore, contrary to Mr. McCormick’s assertions, a court is not bound to execute each and every provision in Mr. Brand’s will if there is evidence that it goes against the morals and values of the citizenry. Also, the court quickly differentiated this case of will stipulated euthanasia and the euthanasia use by the Vermont Humane Federation, Inc., because the animals euthanasized by the Vermont Humane Federation, Inc., are unwanted animals. The court was aware that many individuals had offered to adopt these horses, therefore, they were not unwanted.
But it should be noted that Vermont Courts had not answered the question: Can a decedent legally request destruction of healthy livestock as part of his Last Will and Testament?
Therefore, this was a case of first impression. [lxii] Since there were no guiding statutes, the court decided to look to the judicial decisions of sister states for guidance and direction. It reviewed cases such as In re Caper’s Estate and In re Estate of Clive Wishart , and learned other courts have made euthanasia provisions void as contrary to public policy. As previously noted, the public outcry in this case was tremendous. In fact, judge Fowler stated that the court had received more than fifty letters from citizens across the nation concerned about the outcome of this case. [lxiii] The Court also reviewed the doctrine of Cy pres in which the court can amend a will if the literal language of a provision cannot be carried out but the general intent of the testator can be ascertained. [lxiv] Using extrinsic evidence, the court ascertained that Mr. Brand loved these horses and only meant to save them from inhumane treatment. Given all this information the
“Wherefore, it is found that the terms of the Third Codicil of Howard Brand, as set forth in Paragraph Tenth C, mandating the destruction of any animals owned by Mr. Brand at his death, are hereby deemed void as against public policy.” [lxv] Thomas McCormick is quoted as saying, “I think she made the wrong decision.” Nonetheless, he went on to say that he probably would not appeal. [lxvi] One interesting not, while the court received more than fifty letters regarding the outcome of this case, none of them addressed the destruction of a perfectly good Cadillac. [lxvii]
F. A VETERINARIAN’S PERSPECTIVE
On October 28, 2002, I spoke to my own veterinarian, Dr. Lynn Sharples of Miller Animal Clinic in Lansing, Michigan, regarding the issue of will-stipulated euthanasia. She advised me that she has never encountered this situation, at least not that she has been made aware. Sometimes she has been requested to euthanize an animal and no explanation was given. Possibly those were instances of pets whose owners directed the executor to have the animals euthanized. Unless the courts are involved, there is no one to stop the euthanasia because there is no law prohibiting a veterinarian for putting an animal to sleep if the owner requests it. She explained that all veterinarians are different, some of them are opposed to euthanizing a healthy animal while others have no such qualms. She told me that if the animal appears young and healthy to her, or if the circumstances are suspicious, she will look into the matter and find out why the animal is to be put to sleep. If possible, Dr. Sharples will offer to take the animal and try to find a good home for it. Although she has not encountered will-stipulated euthanasia, she has encountered will-stipulated adoption. She once advised an elderly woman to adopt a young cat but the woman was hesitant because of her advanced years and failing health. Dr. Sharples offered to take the cat if anything happened to her. Some time later, Dr. Sharples was contacted by the woman’s daughter and her niece who advised that the woman had passed away and left provisions for Dr. Sharples to take the cat. She did, and told me that he is the best cat she has ever had. [lxviii]
In summary, I found numerous cases of euthanasia provisions but none of them allowed the euthanasia to take place. Whether the animal was old or young, household pet or valuable livestock, the courts disallowed the provision as void. Sometimes the court relied on public policy and other times it relied on “property” issues stating that to euthanize a perfectly healthy animal was a waste of resources. In some instances the court relied on extrinsic evidence to determine that the testator only wanted the animal destroyed because they falsely believed the animal would be left to suffer after they passed on. Since the issue of will stipulated euthanasia seems to have been resolved by the courts, no further improvement is necessary.
[i] . Cindy Hall and Suzy Parker, What We Do For Our Pets , USA Today, October 18, 1999.
[ii] . Anne R. Carey and Marcy E. Mullins, Man’s Best Friend? , USA Today, December 1, 1999.
[iii] . In re Capers Estate , 34 Pa. D. & C 1d 121 at 121-123, (1964)
[iv] . Russell v. Quinn . 69 Cal. 2 d. 200, 215 (1968).
[v] . Id. at 204-205.
[vi] . Id. at 216.
[vii] . Id. at 215.
[viii] . See 5 William J. Bowe & Douglas H. Parker, Page on the Law of Wills 40.19 (1982).;
[ix] . Jennifer R. Taylor, a “Pet” Project for State Legislatures: The Movement Toward enforceable Pet Trusts in the Twenty-First Centruy , 13 Quinn. Prob. Law Jnl. 419,, 421 (1999).
[xi] . In Re Searigh t, 87 Ohio App. 417, 421 (1950).
[xii] . Taylor, supra at 422-423.
[xiii] . Taylor, supra at 424. Beyer supra at 650.
[xiv] . Unif. Probate Code 2-907 (amended 1993).
[xv] . Taylor, supra at 425.
[xvi] . Beyer, supra at 650.
[xvii] . Id at 666.
[xviii] . Id at 667.
[xix] . Id.
[xx] . In re Lyon Estate , 67 Pa. D. 7 C.2d 474 (1974).
[xxi] . Id. at 475.
[xxii] . Id. at 480.
[xxiii] . Id at 477.
[xxiv] . Id. At 483.
[xxvi] . Id. at 669.
[xxvii] . Id. at 670-671.
[xxviii] . Id. at 671-672.
[xxix] . Id. at 671.
[xxx] . Willett v. Willett 197 Ky. 663, (1923).
[xxxi] . Id. at 664.
[xxxii] . Id. at 665.
[xxxiii] . Id. at669.
[xxxiv] . Cat Heir , People, August 31, 1998.
[xxxv] . Beyer supra at 619.
[xxxvi] . Larry Sutton, Anna Lisa Raya, Matthew Beard, Chris Lee, Scott LaFee, Jennifer Longley, Ward Morehouse III, Ulrica Wihlborg, Kelly Williams, Dusty’s Cool Fat Cat, People, April 19, 1999.
[xxxvii] . In re Capers Estate , 34 Pa. D. & C.2d 121, 122 (1964).
[xxxviii] . Id. at 126.
[xxxix] . Id. at 127.
[xl] . Id. at 133.
[xli] . Id at 135.
[xlii] . Id. at 141.
[xliii] . Id. at 138.
[xliv] . In re Estate of Clive Wishart . 1992 A.C.W.S.J. LEXIS 34836, 2.
[xlv] . Id at 7.
[xlvi] . Id.
[xlvii] . Id. at 8.
[xlviii] . Id. at 7
[xlix] . Id. at 19.
[li] . Id. at 25.
[lii] . Third Codicil of Howard H. Brand. Article Tenth C. “If at the time of my death I am still the owner of any animals, including any horses and/or a mule, I direct my Executor to have such animals destroyed.
[liii] . Pamela Loring, Horses Await Brand New Life After Rescue From a Willed Death , Horsin’ Around, 1999.
[liv] . Id.
[lv] . Id.
[lvi] . Id.
[lvii] . Respondents’ Memorandum In Opposition To Motion For Preliminary Injunction, In re The Estate of Howard Brand , at 1.
[lviii] . Id.
[lix] . Id. at 5.
[lx] . Id. at 6.
[lxi] . Id. at 4.
[lxii] . Findings of Fact, Conclusions of Law and Order, In re Estate of Howard H. Brand .
[lxiii] . Id. at 4.
[lxiv] . Burr’s Executor’s v. Smith , 7 Vt. 241 (1835).
[lxv] . Findings, supra at 7.
[lxvi] . Loring, supra .
[lxvii] . Findings, supra at 7.
[lxviii] . Telephone Interview with Lynn Sharples, D.V.M., Small Animal Veterinarian at Miller Animal Clinic, (October 28, 2002).