Meet Fitzy: one fierce and adorable tuxedo cat; beloved by all who meet her. Our future daughter-in-law, Christina, inherited Fitzy when her grandma became too ill to care for her. 10 years later, Christina has become an important part of our family, as has Fitzy by extension (Philippe and I like to think of ourselves as Fitzy’s ‘preferred’ cat-sitters!). The story of Fitzy has a happy ending: she was not relinquished to a shelter and instead lives a charmed life in a loving home, there was no family drama over re-homing her, and there was no need for Christina’s grandma to stress over what to do with Fitzy in her Will. This is not always the case.
With the rise of pet ownership during the covid pandemic, clients are more frequently asking us: ‘How do I deal with my pets in my Will?’. It’s a difficult decision for many, especially for those who live alone with no immediate family willing to take responsibility for their pets. And more than ever before, we view our pets as family members. Indeed, the term “fur baby” has become a part of our English language – it’s now a defined term in many dictionaries! And yet, under Canadian law, our pets are classified as ‘personal property’.
Here in lies the dilemma for so many pet owners preparing an estate plan. We want to treat our pets like family members, or at the very least, in a humane way having regard for our pet’s best interests. However, in the eyes of Canadian law, pets are mere property. A testator cannot leave an estate asset to their dog or cat as a “beneficiary”. Furthermore, most testators are acutely aware that not all of our friends and family are prepared to assume the burden and expense of caring for our beloved pets.
The traditional approach to dealing with pets in estate planning is as follows: the testator includes a provision in the will instructing the executor to ‘deliver’ possession of the pet to a specific person, and if that person is willing to care for the pet, they receive a specific sum of money from the estate to cover the pet expenses. While this is indeed a logical and often effective way of dealing with pets in your estate planning (especially if you have no immediate family or friends volunteering to take your pets if you die), there are some downsides to this approach and recent case law illustrates how such a ‘pet bequest’ has and can go wrong.
In a recent case out of the Ontario Superior Court of Justice, Estate of Giuseppina Ariganello, (Lobb v. Thiele, 2020 CarswellOnt 18196, 2020 ONSC 7553, 63 E.T.R. (4th) 74 (Ont. S.C.J.)), the deceased’s will contained the typical term as set out above: the will instructed the executor to contact a specified individual to request that he care for the deceased’s two dogs and if this individual did not agree, the executor was to find another suitable ‘pet guardian’. The Will further provided that the Estate would gift $100,000 per dog to whomever assumes care of the dogs. Upon the testator’s death, the lawyer for the estate sent the named individual a redacted version of the will specifically excluding the provision regarding the monetary bequest. The individual agreed to take one dog. The executor then decided to give the other dog to her own son. However, once the named individual learned of the monetary bequests, he changed his story, claiming he had in fact agreed to take both dogs and he sued the executor. The end result: the named individual lost his case and the dog (along with the $100,000) went to the executor’s son.
While cash bequests certainly incentivize friends and family to accept the role as pet guardian, it may encourage less than altruistic motivations and lead to conflict among executors and beneficiaries. No one wants our well intentioned ‘pet bequest’ result in legal claims. Court actions take a tremendous toll on personal health, relationships, and financial resources.
Furthermore, even in the absence of conflict, leaving a sum of cash to a pet guardian does not ensure that the cash will be used for your pet’s care. There is nothing stopping the pet guardian from taking the funds and later relinquishing the pet to a shelter.…you cannot rule from the grave. While there is the possibility that you can set up a “trust” for the pet guardian whereby the executor (or another appointed trustee) must hold a portion of your estate in trust for the pet guardian, this is logistically difficult. It will not only require the commitment of a pet guardian, but also the long-term commitment of the executor who must invest, manage and dole out the trust fund over time. A trust may further result in adverse tax consequences.
Food for thought: if we view our pets as children, the best approach may be to plan for their future care in much the same way that we plan for child guardians. Leave the cash gift out of your will. if possible, look for a trusted family member or friend who is responsible and financially able to take good care of your pets. Discuss with them your expectations for your pet’s care and be satisfied that they are ready and willing to become a pet owner for the right reasons. Indeed, rarely, if ever, have clients instructed us to include a cash bequest in their will for whomever is willing to assume the role of their child’s guardian.
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).