Passing it on to pets: Fat Cats and Lucky Dogs

By Michael Rappaport

When Leona Helmsley, the billionaire hotel heiress nicknamed “the Queen of Mean” by the media, died at age 87 in August 2007, she left behind a heap of trouble when she left “Trouble” a $12-million trust fund, and nothing for two of her grandchildren. Trouble was Helmsley’s little Maltese dog and her most loyal companion, as she was estranged from her grandchildren and had few friends.

The disinherited grandchildren challenged Trouble’s trust fund in court, on the grounds that their grandmother was not of sound mind. The judge reduced the trust fund to $2-million – leaving Trouble considerably poorer, but still a pampered pooch by any measure – with the remainder divided between the grandchildren. (Helmsley left the bulk of her billions to a charitable trust for dogs, a matter that is still before the courts.)

Barry Seltzer and Gerry Beyer write about Trouble’s legal travails in their book, Fat Cats & Lucky Dogs: How To Leave (Some Of) Your Estate To Your Pet, to highlight the difficulties faced by testators when they try to provide for their pets’ feeding and care after they die. Barry Seltzer is a lawyer from Toronto, who practises estates law and is a frequent television and radio guest in Canada, the U.S., the U.K. and Australia. Gerry Beyer is a law professor from Texas Tech University and an expert on estate law.

Under common law, it is difficult to provide for a pet in a will. Pets are regarded as property, and property can’t own property. Furthermore, in most jurisdictions, you can’t make an animal a beneficiary to a traditional trust, because a beneficiary has to be able to enforce the trustee’s duties, something an animal cannot do.

Even where a pet owner used proper legal instruments to provide for a pet – as Leona Helmsley did – the amount of money or property bequeathed may be challenged if it was excessive. Under judicial decisions or statutes, a court may have the power to reduce the value of a gift for the benefit of a pet to an amount it considers more reasonable.

The authors canvass in detail a wide range of options, both formal and informal, that pet owners may consider to ensure that Fido, Polly or Tabby are well provided for in the event that their owners become incapacitated or die.

Informal arrangements may involve finding a caregiver and making a handshake agreement. If pet owners want to give the arrangement some legal teeth, they may formally make a conditional gift to the caregiver in trust. In about 40 states in the U.S., they may set up a statutory pet trust. (The U.S. is the only country in the world which currently recognizes statutory pet trusts.)

The book’s cover claims it contains “everything you need to know to protect your pet if you become sick or die.” This is no idle boast. The book even devotes a chapter to providing for the future care of exotic and illegal pets. While the average person would not want to keep lions, tigers or bears as pets (Oh my!), there are an astonishing number who do. According to one estimate there are between 6,000 to 7,000 tigers held privately in the U.S., which is greater than the number of tigers left in the wild in Asia, estimated at 5,000.

As law texts go, Fat Cats & Lucky Dogs is entertaining reading. It is chock full of witty quotations about pets from famous people, unusual pet trivia and quirky briefs of cases concerning pets. But is there a serious reason for lawyers who do wills and estates to run out and buy this book? Indeed there is.

Chew on the following stats from the 2001 IPSOS-REID pet ownership study (Paws & Claws): More than half of all Canadian households own a cat or a dog, with one-third of households owning cats and one-third owning dogs. One in 10 households (13 per cent) own both cats and dogs. Eight in 10 pet owners (83 per cent) consider their pet to be a family member; only 15 per cent said they love their pet as a pet rather than as a family member.

So if you’ve drafted a will and you neglected to ask your client about provisions for pets, you may have committed a major oversight. And as anyone who has written wills knows, clients are often uncomfortable about discussing their mortality. Asking about pets is a great way to put your client at ease and build rapport.