"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."
The court held that the direction to shoot the animals was contrary to public policy because the destruction of the horses would serve no useful purpose and would waste estate assets even if carried out humanely. A reference was ordered that would ensure the placing of the horses into good homes. The court then directed the New Brunswick S.P.C.A. to determine who would be best suited to take over ownership of the horses.
Courts are notoriously unsympathetic to people who request healthy animals be euthanized. The fact is that when someone includes in their will a direction that an animal, usually a pet, be destroyed following his or her death, almost invariably the will ends up in court.
Catherine Wilson in a featured article in the 2008 Canadian Horse Annual describes the case of Sullivan v. Sullivan (Ontario). Apparently Gerald Sullivan left his pets in the care of his brother and executor, Michael Sullivan. The court apparently awarded Michael Sullivan $793.00 for food and care of Gerald Sullivan's two cats. One can be led to assume that there was a failure to provide any compensation his brother and executor, Michael Sullivan for doing so, hence the application.
Question: Are we just talking cats and dogs here, or are other animals involved too? What's the most unusual case you've handled or heard of?
Other pets are involved. According to the 2001 IPSOS-REID Canadian pet ownership study, more than half of all Canadian households owned a cat or a dog, with one third of households owning cats and one-third owning dogs. One in 10 households (13 per cent) owned both cats and dogs. These results suggested that there were more than seven million cats and more than five million dogs living in Canadian homes. Canadian households also have rabbits, snakes, spiders, rodents, reptiles (such as turtles/tortoises), small animals, birds, reptiles, saltwater fish and fresh water fish - and other critters (some exotic) and some large such as horses. In fact a Koi's average lifespan ranges between 40 and 70 years and certain varieties may live for more than 100 years and be handed down from one generation of human caretakers to the next. Koi fanciers will part with thousands of dollars for a fancy or unique mature specimen. And then there's the sentimental value of a fish that was purchased as a fingerling by granddad so long ago.
[As to most unusual case]At the time I was advising an Executor who lived outside of Canada regarding the administration of a particular estate. The will maker had requested his relative, the Executor to arrange to have his pet dog that had died in close proximity to the will maker's death cremated and to have the ashes interred with the remains of the will maker in the will maker's crypt.
An article in the Vancouver Sun in November 2009 Surrey Mayor Dianne Watts stated that city council would not permit a developer to build homes on an old pet cemetery if it can be established that human remains are also buried there. Cemeteries have been regulated in Ontario for almost 100 years, and that regulation has always included a definition of "cemetery" as "land set aside to be used for the interment of human remains. ... pets were not a part of it."
For example, Brockvillians began burying pets at Oakland Cemetery along County Road 2 and the Lyn Road as a result of what has been called an "innocent error". There are no plans at this date to change the current cemetery regulations.
Question: Are Canadian and American laws very different when it comes to estate planning? Are there any particular quirks of Canadian law we should know about with respect to estate planning and pets?
Barry Seltzer: Canadian Laws and American Laws are different in many respects. In Canada the laws differ regarding estate administration even from Province to Province: Each province has its own determinations relating to different types of property which require probate.
Over the past decade, 44 American states have enacted laws allowing pet owners to set up trust funds for the care of their animals after the owners have died. At the time of writing, these states were the only places in the world that that could be found as recognizing pet trusts. At this time Canada does not permit pet owners to set up trust funds for the care of their animals after the owners have died.