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(Jupiterimages/(C) 2009 Jupiterimages)
(Jupiterimages/(C) 2009 Jupiterimages)

Heavy Petting

How to give Fido the mansion after you die Add to ...

Treated like members of the family, pets are increasingly included in their owners' wills - often much to the dismay of human relatives who find themselves snubbed in favour of the deceased's four-legged best friend. Recently, heiress Gail Posner left a $3-million (all figures U.S.) trust fund and her $8.3-million Miami Beach mansion to her three dogs, Conchita, April Maria and Lucia. (She also left $27-million to her maids, bodyguards and personal trainer.) Her only child, who received $1-million, is challenging the will in court.

While eccentric millionaires go to extremes, making sure your pets are cared for after you die is becoming more common.

The law in Canada views animals the way it views money or houses-as property.

Toronto estate lawyer Barry Seltzer, author of the new book Fat Cats and Lucky Dogs: How to leave (some of) your estate to your pets, says that at least a third of his clients who have pets ask for provisions for the animals in their wills. Canadian law prohibits leaving money directly to animals, but Seltzer says there are other ways to ensure Fluffy and Fido will live the good life after you've gone to that big dog park in the sky.

Question: What are the most common mistakes or false assumptions that people make when thinking about what will happen to their pets after they die?

Barry Seltzer: Many pet owners think a friend or relative will automatically take their pet if they die, but the fact is the friend or relative may give it away, take it to a shelter, or sell it. As property, the pet will pass under the owner's will or to the owner's heirs if the owner does not have a will. If it is a valuable animal, the court may decide who ultimately gets it. It may be someone whom its original owner would not have wanted to have it!

The law in Canada views animals the way it views money or houses-as property. In most jurisdictions pets cannot be the direct beneficiaries of wills, trusts, or insurance policies. In Canada you cannot leave anything to a pet in your will. However, with proper planning, pet owners can make sure their pets receive proper care after their death.

Question: We hear about the high-profile cases like Leona Helmsley and Gail Posner, but is estate planning for pets something normal people in Canada do? How common is it?

Barry Seltzer: In my law practice I have seen more and more people include their pets as part of their estate plan. I would estimate that at least 3-4 people out of 10 people who have a pet ask for a provision dealing with their pet to be included, at least, in their last will and testament.

Question: How hard is it to make legal arrangements for your pet after you die in Canada? Is it something you can do yourself or do you need an attorney's help, and how much time and money should you expect to spend?

Barry Seltzer: Baskin and Robbins ice cream stores used to carry a sign that said anyone could make ice cream cheaper, but not necessarily better. My point is, there will always be "inexpensive" alternatives to lawyers, and in certain limited circumstances these might work well enough. Everyone does not need a complicated expensive estate plan and pet plan and in these cases a lawyer-prepared will, including pet provisions, is not really expensive. In this area, as in many others, it's what you don't know that may haunt your family and your pet.

Question: How do living relatives react when they find out that part (or all) of the estate is going to the pet? How can you minimize the chances of a challenge?

Barry Seltzer: Different people react differently. The fact it is going to a pet and not a human beneficiary may sometimes ratchet up the ire of the passed over relative or friend and is more easily justified in that individual's mind. In addition when the sum is substantial there seems to be a greater potential for people to come forward and advance an estate claim. A famous example is the case of Eleanor E. Ritchey, the heir to the Quaker State Refining Corporation. She left $4.5-million to her dogs…all 150 of them. Her family contested the will and the dogs ended up with $9-million (the value grew to $14-million while the case was in dispute). When the last dog died the remainder of the money went to Auburn University Research Fund for research into animal diseases.

As set out above, a Canadian lawyer is required to make sound observation of a will-maker and confirm capacity as a professional observer. If that capacity may become an issue, steps are require to be taken to ensure to the degree possible that the will maker's will and wishes are both respected and protected. This would include creating a body of proof that the will maker was capable at the time the instructions were given to the lawyer and at the time of signing the will and related planning documents. This is the most that anyone can do to protect their plan and wishes. However the court takes on a role of balancing the interest between the will maker and beneficiaries (including those people to whom the will maker has an obligation of support or other legal obligations) and will was done as did the judge in Leona Helmsley's case.

Another aspect of leaving a bequest to a pet centers on the quantum left for the pet's care and benefit. There is no 100 per cent guarantee that your wishes regarding your pets will be sacrosanct. In cases where a person has left an excessive amount of money, or other property to a human for the care of a pet, a court can reduce the amount to something it considers more reasonable and distribute the difference to other human beneficiaries.

Question: Do you have pets? If so, what kinds/names, and what plans have you made for them?

Barry Seltzer: Yes, at home we currently have a blue tongue skink lizard called Baloo and a python snake called Viper, both of whom are owned by a 24-year-son, and a small brown rat owned by an 18-year-old daughter. They are currently fully responsible for both the care and planning for their pets. We would keep and care for them should the need arise and at such time would make proper provisions for their care were we not in a position to do so. Up until about a few years ago I also had a family dog (my third dog) called Hippy, and we have had a multitude of birds, a rabbit called Oreo and a hamster. I have had and loved animals all my life.

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