For many Canadians their four-legged fury friends play a major part in their lives. In planning for our deaths, many people want to take into account what will become of their beloved pets. Most certainly do not want their companion animal to be forced into a shelter or worse.
In Ontario, pets are considered property, and as such they cannot hold property themselves. So you cannot simply gift part of your estate to little Rover, or setup a trust where the beneficiary is a pet rather than a person. One of the requirements to set up a valid trust is that there be an ascertainable person who benefits from the trust and one who can enforce it (there are some exceptions, and in fact there is a recent case out of Saskatchewan where the court permitted a trust for the benefit of the testator’s four cats, but no Ontario authorities have yet followed suit). So how do you ensure your pets are well cared for after your death?
You could leave a cash legacy to an individual, and bequeath the pet to that same person. You could include in the gift a condition that the individual not receive the cash unless they first accept the pet as well. The problem is when you give cash you lose control over use of the funds. The person caring for your pet is under no obligation to use the money to support the pet, nor can you make any binding directives regarding the pet once delivered. You have to trust that this person shares your values and will continue to care for your animal as you would have wanted.
Or you could set up a trust for a pet guardian. A trust would be set up naming a trustee, and a separate beneficiary, who would care for the pet. Like any trust terms for use of trust assets could be set out. You would want to make sure that the trust is reasonable, to prevent it from being challenged as being excessive for the needs of the pet (such as in the famous case involving a very lucky dog named Trouble, who was in line to benefit from a $12 million trust).
A third option is to enroll in a program with an organization, whereby you bequeath your pet to them, after payment of a fee. These organizations typically work to place the pet in a suitable home, and sometimes contain clauses whereby they will provide ongoing medical care throughout your pet’s lifetime (this can help an older animal get adopted). For an example, the Ottawa Humane Society runs such a program, and publishes a summary of what is offered on their website.
Matthew Harmes is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca