BMO Nesbitt Burns
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|For pet owners, the question in the title of this article may be of significant concern. A family pet, especially if owned for many years, may be considered part of the family.
Pets are considered property from a legal perspective, although there is a movement towards classifying animals as “sentient beings”. For example, the Province of Quebec has introduced the Animal Welfare and Safety Act, which indicates that “animals are sentient beings that have biological needs”.
It is not legally possible to leave money or physical property to a pet. Accordingly, many pet owners include special provision in their Wills to provide for the care and maintenance of their beloved pets after the owner has passed away.
The Will must indicate which beneficiary will receive the pet. In the absence of other related provisions in the Will, the beneficiary (assuming he or she accepts the gift of the pet) will need to spend his or her own resources to take care of the pet. This could be an expensive proposition, and the beneficiary may decide not to accept the gift.
|One option is to set aside a fund for the care and maintenance of the pet. The funding provisions in the Will may take the form of a trust, appointing a trustee to manage the fund. However, such trust provisions may be found to be unenforceable due to the legal requirements regarding trusts. Another option is to give the pet to a particular person along with a cash legacy to express appreciation to the person and to defray the costs of caring for the pet.
If there is no special provision for the pet in the Will, the executor will decide what will happen to the pet. Although the general provisions in the Will may permit the executor to give the pet to a beneficiary, the Will may also permit the executor to sell the pet and distribute the proceeds in accordance with the terms of the Will. If a pet owner has specific wishes with respect to the care and maintenance of his or her pet following the death of the owner, consideration should be given to including these wishes in the estate plan.