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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. 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: In the Gail Posner case, I see one of the arguments that her son is making is that her level of devotion to her dogs is a sign of mental illness. How can you make sure your pets are taken care of while still being considered "of sound mind," as the saying goes?

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Barry Seltzer: A bit more background may put this case in perspective. When heiress Gail Posner died in March, her only living child, Bret Carr, learned about an unusual amendment she made to her trust in 2008. The pertinent part of the amended article reads:

A. If the Settlor has any dogs at the time of her death, the following provisions shall apply:

1. The Trustees shall retain the property located at 1525 West 24th Street, Sunset Island #3, Miami Beach, Florida…together with a sum which they shall determine, in their sole and absolute discretion, to be sufficient to pay all of the carrying costs of the Residence…until the death of such of the Settlor's dogs, April Maria, Lucia and Conchita, as shall be living at the time of the Settlor's death and any other dogs owned by the Settlor at the time of her death; provided, however, that such sum so set aside by the Trustees shall not exceed the sum of THREE MILLION ($3,000,000) DOLLARS.

2. The Trustees shall pay over and distribute the sum of FIVE MILLION ($5,000,000) DOLLARS to QUEEN ELIZABETH BECKFORD, if she shall survive the Settlor, and provided that she agrees, to the satisfaction of the Trustees, to care for such of the Settlor's dogs, April Maria, Lucia and Conchita…

Posner then names several alternates if Beckford refuses to care for the dogs "with the same degree of care" they received while Posner cared for them. This could be an expensive task; Conchita has weekly spa appointments, a Cadillac Escalade to take her to those appointments, and a $15,000 Cartier necklace.

When the dogs die, the mansion is to be sold, and the proceeds will go to charity. The remainder of her estate (after several large gifts to caretakers) goes to animal shelters, breast cancer prevention, and suicide-prevention centers. Posner also directed that the canine-care staff take care of her pet turtles as well.

Carr filed a lawsuit in an attempt to revoke Posner's will. He claims (in addition to what you indicate above) that her level of devotion to her dogs is a sign of mental illness, that household aides drugged Posner, told her that Carr was out to kill her, and induced her to change her will and trust in 2008, leaving him only $1-million while the dogs received an $8.3-million mansion and a $3-million trust fund.

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However, it would be wrong to say that she had only thought of her dogs while making her will. Most of her staff, including her bodyguard as well as her aides, will also be getting considerably richer and can continue to live in her mansion. The only catch being that they will have to care for her dogs.

There is no 100% 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. The most common will challenge is highlighted by the case of Leona Helmsley. In death, Ms. Helmsley left most of her estate - estimated at $5-8 billion - to her family charitable trust, which appears to be dedicated to the care of dogs. But the real blockbuster in her will was the $12-million trust fund she left for the care of little Trouble.

Unfortunately for Ms. Helmsley and Trouble, disgruntled relatives and a cooperative judge managed to undo the trust agreement by reducing it to $2-million and awarding $6-million to each of the two disinherited grandsons - all on the basis that their grandmother was not of sound mind when she concocted her will and trust agreements.

As of September 2009, the case regarding the bulk of Ms. Helmsley's estate remained unsettled, with the courts deciding that the trustees were free to give the money to whichever charitable causes they saw fit, rather than primarily to organizations that cared for dogs. Three leading charities said they would try to have this aspect of the court ruling overturned. The case goes on.

So despite some bumps along the way, Ms. Helmsley did manage to ensure the ongoing care of her canine companion. Had there been no trust provision, Trouble would likely have been in real trouble, considering no one really wanted her.

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.

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A concept Canadian legislatures may wish to consider is "ante-mortem" probate where a will is validated while the person is still alive which then prevents it from being contested after the person dies. This technique started to gain hold in the United States several decades ago when Arkansas, North Dakota, and Ohio authorized the technique. Ante-mortem probate may be regaining interest in the States as Alaska has just passed legislation authorizing this technique.

Question: What are some cases in Canada that have set precedent or been a model (good or bad) for leaving your estate to your pets?

Barry Seltzer: There are cases dealing with a multitude of aspects of estate planning and pets.

Some pet owners have included clauses in their wills directing that their pets be destroyed upon their death. Their motivations vary. Some feel their pet would be so distraught without them that it would be kinder to end its life. Others think that no one would adopt their pet and that it would end up in a shelter and be euthanized anyway. Others worry that their pet might be adopted by someone who would treat it badly - or that it could land in some scientific research program. A bit more background may put this case in perspective.

One scenario that has come up relates to a will maker's desire to have his or her pets follow them to the grave. A case in point 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."

This matter came to the attention of the courts because the R.C.M.P. notified the executors that they would not follow Mr. Wishart's directions without a court order requiring them to do so. Mr. Wishart's executors, whose responsibility it was to carry out the directions in the will, were also unhappy with the provision. After all, the horses were in good health and less than four years of age. The court became involved and was aware of the strong public protest to this provision. This case became the subject of debate in both Canada and the United States. Petitions were signed and letters were written to the court. One letter was written by an elementary school child and stated:

Dear Judge,

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

In spite of the uproar, the court resolved that its decision would not be based on sentiment but on legal principles. Fortunately for the horses, the court employed extrinsic evidence that brought 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. The court held that "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." 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."

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.

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