How to protect pets in estate planning

Animal lovers may treat pets as part of the family, but that’s not the way Ontario law sees it.

In a case that caught the public imagination, an Ontario Superior Court judge ruled that a woman must turn over her deceased partner’s dog to his executor after finding the pet formed part of his estate.

The case had nothing to do with who loved bull terrier Rocco Jr. more or who would make the best owner, the judge wrote, noting that dogs are “personal property much like other chattels (albeit indivisible).”

Aliesha Verma, the partner of the deceased, has raised almost $30,000 in a GoFundMe campaign to cover her legal costs. But she was always fighting an uphill battle, said Timothy Sullivan, principal at SullivanLaw in Ottawa.

“A pet is personal property under the law, as crass as that might sound when you’re talking about a living, breathing, emotional being,” Sullivan said. “They are not persons, so they are property and they get distributed as such.”

In the 2021 case Coates v. Dickson, the judge endorsed a “broader, more contemporary approach” to pet ownership that considers factors such as each party’s relationship with the animal, Sullivan said, as opposed to simply who paid for the pet and its care.

Rebeka Breder, principal at animal law firm Breder Law in Vancouver, said Verma may have obtained a different result in B.C., where a series of court rulings have recognized the need to consider the animal’s best interest in disputes over pet ownership.

“My heart goes out more than anyone to Rocco, because Rocco will now be ripped apart from the only family he knows and put in another setting that is completely foreign to him,” Breder said. “I’m not completely surprised, but I am very disappointed, because it flies in the face of the way the law is evolving on this issue.”

Recent amendments to B.C.’s Family Law Act have codified the shift in the jurisprudence regarding disputes over pet custody in matters of separation and divorce.  

The changes, which came into force on Jan. 15, reclassify pets under a category of property known as “companion animals.” In addition, B.C. judges making decisions over their ownership or rights of possession must now consider factors regarding the best interests of the animal itself, including the extent to which each spouse cared for the pet, any history of cruelty, and the animal’s relationship with any children in the family.

The updated law does not cover guide dogs, service dogs and animals kept for working or agricultural purposes.

Kim Gale, principal at Toronto estate-litigation firm Gale Law, said cases like Rocco Jr.’s are more the exception than the rule.

“My experience is the opposite. In my world, people usually that people don’t want the dog or pet,” Gale said. “Estate trustees are happy if they can find someone who wants to take on the responsibility.”

Gale explained the law’s traditional view of pets as property stems from the value historically attached to livestock and working animals.

“That kind of animal ownership can be very profitable,” she said. “Domesticated pets cost money.”

Kathy McMillan, associate portfolio manager with Richardson Wealth in Calgary, said it’s heartbreaking when she hears stories about animals left stranded after their owner dies.  As a result, she encourages her clients to include provisions for pets in their estate plans.

“They’ve been faithful all these years. You need to think about taking care of them,” McMillan said.

McMillan has followed her own advice, recently recruiting friends to act as guardians to Spookie and Gracie — the cats McMillan added to her family at the height of the Covid-19 pandemic — if she dies before the cats.

She has also allocated funds from her estate to pay for the cats’ expenses, joking that the amount will need to be “more than substantial” to keep them in the style they’re accustomed to.

“Toss some money at it. They need kitty litter and gourmet cat food,” McMillan said. Most importantly, “I know if something happens to me, Spookie and Gracie will be in super good hands with people that love them.”

Sullivan said one of the practical difficulties when providing for pets in a will is the discrepancy between human and animal life expectancies. Many years typically elapse between the execution of a will and the death of the testator, by which time they may have already outlived their cherished pet, he explained.

Sullivan overcomes this challenge by including a “pet clause” without being specific about the animal’s identity.

“It could say that any pet alive at the time of death is given to whichever person, and there might be an allowance provided to them for some of the initial care,” he said. “That person could always refuse, but presumably you would make that arrangement with them, so that it’s not being sprung on them.”