Helga Schimkat is a lawyer, writer, and activist who focuses on animal and environmental issues. This article provides a brief, general overview of animal law issues. It does not constitute legal advice.
DogTime.com and CatTime.com recently reported that a Chicago court saved Boots, a healthy 11-year-old cat, from being euthanized as the cat’s owner had directed in her will. The bank serving as executor of the estate requested the court to override the euthanasia provision in the will, which it did, and the cat is now living at a no-kill cat sanctuary.
The circumstances surrounding Boots’ survival and new home serve as an important reminder of the need to make appropriate arrangements for one’s companion animals and raise interesting legal and philosophical questions.
Can a Court Really Overturn a Will Provision?
Yes, a court can overturn a provision in a will and may do so for several reasons, including the “undue influence” of another person, the decedent’s lack of capacity (such as someone with severe dementia), or the requiring of an illegal act or something objectionable to public policy be done.
Imagine if a decedent required that their child be killed upon the decedent’s death because it would be too sad for the child to go on; or if the decedent left money for John Doe but only if John first killed someone else first. The Art of the Steal, a fascinating documentary about the Barnes art collection in Philadelphia, is an enlightening work on the topic of the power of the courts to change will provisions.
Pets as Property
The law traditionally considers animals personal property much the same as a chair or necklace. Thus, someone can sell or give away a cat or dog, or euthanize one at will (if a veterinarian is willing to do so). The property categorization also explains why someone who sues and wins over the death of a companion animal at someone else’s hands is often awarded no more than the “cost” of the pet, that is, the adoption fee or amount paid to a breeder.
Pet Trusts and Other Tools
However, the property concept does not sit well with many animal advocates and the law is slowly changing to address that unease. “Pet trust” laws are one example of the change. Many states have enacted laws in recent years allowing a person to create a “pet trust” for the benefit of his or her companion animals in the person’s will or living trust. With a pet trust, a person essentially orders that a certain amount of his or her estate will be set aside to care for the person’s animals for the duration of their lives. The document creating the trust names trustees who handle the money and makes provisions for caregivers or guardians. Some trusts may also name a person who is legally entitled to enforce the trust for the animal’s benefit, and may require specific actions such as type of food, whether the animals can be separated, and other such details.
Because a will takes effect only after someone dies and the probate (or other) court appoints an executor or personal representative (named by the decedent in the will), there is a time lag between the person’s death and the start of the pet trust. If choosing to use a will, the person should make arrangements for the care of the animals for that timeframe, potentially through other legal documents.
Living trusts provide an alternative to a will that would allow a pet trust to kick in before death should the person become unable to care for their animals while still alive, such as while living in a nursing home.
It may also be possible in some state to modify a Power of Attorney to provide the authority to pay for the care of a companion animal and make living arrangements for them during a period of the individual’s incapacity.
Whatever tools are chosen, the individual should consult with a lawyer with expertise in both estate planning and specifically in companion animal provisions to get the job done properly.
