Karl Lagerfeld – the iconic German designer best known for his work as creative director of Chanel and Fendi’s fashion houses – died this past Tuesday, February 19, at the age of 85.
In the wake of his death, news outlets have reported on a variety of different aspects of Lagerfeld’s illustrious life, from his legendary influence in the fashion industry, to his penchant for controversial commentary, to the impact his work has had on various celebrities and other household names. The articles that caught my eye last week, however, were those with headlines stating that Lagerfeld’s beloved pet cat, Choupette, was set to inherit his approximate $200 million fortune.
Choupette, a seven-year-old, white Birman cat, was one of Lagerfeld’s most cherished companions during his lifetime. Lagerfeld would regularly speak of his pet in human terms, referring to her as “Mademoiselle”, a “chic lady”, and calling her his favourite travel partner (the two would often travel together by private jet). Choupette reportedly has her own sets of customized Louis Vuitton cat-carriers, several personal maids, and a bodyguard, amongst other luxuries. She and Lagerfeld also often ate together, with Choupette dining on caviar and croquettes at the table, opposite Lagerfeld. As Lagerfeld’s right hand cat, she lived a life of extravagance of which many can only dream.
While Lagerfeld has suggested in past interviews that Choupette would be an heir to his vast Estate, the headlines about Choupette’s alleged inheritance drew my attention specifically for reasons of semantics: in Canada, at least, pets cannot technically hold or inherit assets themselves.
Although one may view their adored pet as a fellow family member, Canadian Law has a different perspective. In Canada, pets are legally treated as property – they are a “living asset” which will form a part of a deceased’s estate at death. In the words of Justice Danyliuk, writing in the Saskatchewan case of Henderson v Henderson, 2016 SKQB 282 : “…after all is said and done, a dog is a dog… a domesticated animal that is owned. At law it enjoys no familial rights”.
Given that it is impossible to give property to other property, a testator must come up with an alternative strategy to naming their pet as a beneficiary. For example, a testator could include a provision in their Will to gift their pets to a successive owner, and could leave a specific cash gift to the successive owner to cover costs associated with caring for their pets or pet. A formal “pet trust” – typically being a sum of money, held in trust, to be used only for the purpose of a pet’s care – could also be established to finance a pet’s care after an owner’s death
While many article titles may suggest that Choupette is personally set to inherit a portion of Lagerfeld’s Estate, it is more likely that Lagerfeld has used one of these alternative strategies to ensure his dear Mademoiselle can live comfortably for the rest of her life.
Thanks for reading!
Many of us are familiar with the New York case where Leona Helmsley left a $12 million trust for her pet Maltese dog, named Trouble. The trust was later reduced to $2 million, by the Court, which ruled that the trust was excessive. Trouble went on to live for another four years following Mrs. Helmsley’s death.
Such cases seem outrageous to some, but make others wonder, what will happen to my fur baby in the event of my passing? That is especially a topic for one’s consideration, if you don’t have children or other family members who are willing and able to take care of your pet, in the event of your passing.
This topic was discussed in a paper by Jenny Pho of Dale & Lessmann LLP for the Law Society of Upper Canada’s Practice Gems: Probate Essentials program on September 29, 2017. Ms. Pho considered the topic of estate planning for pets, in Ontario.
In Ontario, pets are considered property, even though to many of us, they are anything but. Since pets are considered property, they cannot hold other property in their names alone. That means, that you cannot leave a simple cash legacy to your pet. Similarly, in Ontario, you cannot set up a trust where the beneficiary is a pet rather than a person, because there is no certainty of objects, meaning that such a trust is invalid. No certainty of objects means that there is no ascertainable person who benefits from the trust and one who can enforce it. Interestingly enough, a Saskatchewan Court recently found that a $10,000.00 trust for the testator’s four cats was valid. Such trusts are also valid in certain states of the United States of America.
There are some options for people residing in Ontario, who would like to include their pets in their estate planning, including leaving a cash legacy to a pet guardian, setting up a trust for a pet guardian and participating in a pet stewardship program.
Cash Legacy to a Pet Guardian
You can leave a cash legacy to a pet guardian and bequeath the pet to him or her. You can include a condition precedent whereby the pet guardian cannot accept the cash legacy, without accepting the pet as well.
One disadvantage of this option is that you cannot enforce any instructions for the care of your pet along with the cash legacy. In addition to that, you cannot provide for a pet in the event that it outlives the pet guardian.
This option is recommended for those who trust the person that they are appointing as the pet guardian.
Trust for Pet Guardian
With this option, you can include instructions for the care of the pet and the ongoing use of funds. Notably, the trustee and guardian should be different people in order to ensure that a separate party enforces the terms of the trust (i.e. the trustee).
With this option you can also plan for an alternative beneficiary as the guardian as well as alternate trustees. On that end, it is important to keep in mind the “rule against perpetuities” and that the ownership of the pet will have to vest in a pet guardian.
You can also determine the residuary beneficiary when the pet dies. It is not typically good planning to include the pet guardian as the residuary beneficiary because it may perpetuate the type of behaviour where the pet guardian spends less money on the pet in order to receive a larger trust when the pet dies.
Finally, you will also want to consider what is reasonable so that the trust is not ultimately challenged in Court as being excessive, such as what happened with Mrs. Helmsley’s trust for Trouble.
Pet Stewardship Program
You can also make an agreement with an organization to bequeath your pet to them along with an enrollment fee and any other amounts in addition to that. Their objectives under such a program will typically include things like finding a permanent home for your pet as well as providing ongoing medical care throughout your pet’s lifetime.
On that end, it is important to keep in mind that there is typically a minimum enrollment fee with such programs. Some organizations that offer programs like that are the Ottawa Humane Society and the Windsor/Essex Humane Society.
Thanks for reading.
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The concept of legal and equitable ownership is constantly evolving as our blog has documented over the years. In a world where anything is possible, the viral photograph of the “Monkey Selfie” has led to a new lawsuit by PETA to extend copyright laws to animals.
The “Monkey Selfie” is a series of photographs that were taken by a black macaque during a photo-shoot set up by nature photographer, David Slater. Mr. Slater travelled to North Sulawesi, Indonesia in 2011 for the purpose of photographing black macaques when one of the black macaques took control of his camera and began pressing the shutter button resulting in hundreds of photographs. While most of the photographs were blurry or unremarkable, a handful of these photographs captured a facial portrait of the black macaque, Naruto, smiling and grinning at the camera.
Eventually, the infamous “Monkey Selfie” was posted on Wikipedia for free distribution around the world wide web. To Mr. Slater’s dismay, Wikimedia took the position that there is no copyright attached to these photographs because they were not taken by a human being (see here). In 2014, the US Copyright Office issued a compendium of its policies which included a new stipulation that only works produced by human beings may be registered for copyright.
As the result, PETA, People for the Ethical Treatment of Animals, is now suing, on behalf of Naruto, to claim copyright to the “Monkey Selfie”. According to PETA, as reported here by CNN, “authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto”.
For good measure, click here for an “elphie” to round out your #Friday morning.
Thanks for reading!
Often the purpose of creating an estate plan is to ensure that your family is provided for in the event of your incapacity or death. But, what happens if you consider Fido part of your ‘family’?
Historically, pets have been largely absent from estate planning discussions; however, their inclusion is becoming increasingly common as of late.
Indeed, stories of the rich and famous gifting (or indicating their intention to gift) outrageous sums of money towards the care and maintenance of their pets, have caught headlines and hoisted the notion of estate planning for the family pet into the spotlight.
An article published by CoveredMag titled “Millionaires Who Left Their Fortunes to Animals” highlights a few examples of such estate planning, including:
• Maria Assunta, who left $13 million to a stray cat;
• Leona Helmsley, who left $12 million to her dog, Trouble;
• Alexander McQueen, who left £50,000 to his bulldogs; and
• Oprah Winfrey, who reportedly plans to leave $30 million to her dogs.
Josh Eisen also recently posted a blog titled “A New Breed of Estate Planning” in which he detailed the story of a 3 year old Maltese, Bella Mia, whose owner recently modified her estate plan to make Bella Mia the beneficiary of a significant trust.
While the above examples outline seemingly outrageous bequests, the reality is that without proper planning your pet could wind up homeless or in an animal shelter upon your death or incapacity. While you might assume that a friend or family member will step up to care for your pet, there is no certainty that without proper notice or support someone will be both willing and financially able to take him/her on. It is, therefore, wise for those of us who think of our pets as family members, to incorporate them into our estate plans, to ensure they will be cared for long after we become unable or incapable of doing so.
So, how do you make provision for your beloved pet?
In Canada, pets are considered property. As such, you can’t gift money or property directly to your pet. There are, however, other ways of making provision for your pet. For instance, you can:
Incorporate a direction in your Power of Attorney: which will permit your attorney to make payments to the caregiver of your pet and to pay for extraordinary veterinary expenses if/as they come due.
Include a gift in your Will to the caregiver who takes custody of your pet: you can include wording expressing your intention and wish that that a gift to your pet’s caregiver be used for the benefit of your pet. While such clauses have no true legal force, simply due to their insertion in a Will, they often carry great weight and act as a formal direction to executors of a Will and future caregivers.
Create a ‘pet trust’: you can set up a formal trust to reflect your choice of caregiver and to make specific arrangements about the type of care you want your pets to receive and how the money you use to fund the trust will be managed and used over its lifetime.
Thank you for reading,
Our blog has covered the topic of pets on a number of occasions, most recently the extravagant tale of Bella Mia Bolasny, a pampered Maltese who is set to inherit from her wealthy owner, or “mother”, Rose Ann Bolasny.
There’s no question that pets become a part of the family, but is considering them children taking it too far? For one Indian couple, that is exactly what their pet monkey became. Brajesh Srivastava and his wife Shabista adopted Chunmun, in 2005 when he was less than a month old. Since then, he has grown up, “married”, and continues to live with the couple in their home in Raebareli, India. They treat him like a son, and even throw Chunmun and his “wife”, Bitti, a wedding anniversary party every year.
So what did the couple decide to do with their estate plan? Leave it all to Chunmun of course!
Their estate consists of a house, a plot of land and a bank account. The estate plan, however, also reflects the couple’s love for all monkeys, not just their own. The trust created for Chunmun will also be used to help other monkeys in distress.
We learned from the Toronto folklore story of Darwin (or the “Ikea Monkey”) that wild animals are not to be considered pets here in Ontario. In 2013, Justice Vallee of the Ontario Superior Court ruled that Darwin’s owner, Yasmin Nakhuda, lost ownership of him when he escaped from her car in December, 2012. Ms. Nakhuda has notably referred to herself as Darwin’s “mom”, and, according to more recent reports, not only still hopes he will be returned to her, but has also adopted other exotic primates.
For residents here in Ontario that legally own pets, such as cats and dogs, a trust like the one set up by Chunmun’s “parents”, is likely not the best option as it could be considered a “purpose trust”. Purpose trusts are trusts created for to fulfill a purpose, not to benefit a person and, if not for a charitable purpose, are often considered invalid. If you do have concern about the welfare of your pet when you’re gone, consider discussing your wishes with a trusted friend or family as part of an estate plan.
Thank you for reading,
Earlier this month, a cat living in Tampa, Florida was hit by a car. Unfortunately, collisions between pets and motor vehicles are not in themselves uncommon. What is unique about this particular case is that Bart the cat, who was declared dead and buried on January 16, 2015, emerged from his grave five days later, very much still alive.
While there may not be any legal implications of an improper declaration of death when its subject is a cat, such a declaration may have a profound impact on the administration of the estate of a human being, as well as that person’s ability to resume control over his or her own affairs.
Under the Declarations of Death Act, individuals residing in Ontario can be declared dead, notwithstanding the inability to locate the body of the person who is presumed to be deceased. Sometimes the Act (and comparable legislation in other jurisdictions) is applied in situations where, like Bart, no death has actually occurred. Last spring, for example, a man living in Illinois was required to go to Court after being declared dead prematurely. While he was able to establish that he was still alive with little difficulty, it was ordered that he personally pay the legal fees related to the administration of his Estate to date.
Such cautionary tales should serve to remind us that applications under the Declarations of Death Act should be used only as a last resort, when it is certain that the relevant individual is, in fact, dead.
Bart, who was badly injured, is reported to be on his way to making a full recovery.
Have a great weekend.
Two charities are proceeding to an Irish High Court for the adjudication of a dispute over the charitable bequest made pursuant to a Last Will and Testament.
The Will in question, executed by Elizabeth Burke of Limerick, Ireland, provided that five hundred thousand of an Estate valued in excess of twelve million euros would be left to the Limerick branch of the Royal Society for the Prevention of Cruelty to Animals. Problematically, no branch of the charity currently operates in Limerick.
However, two other charities which serve similar causes in the region do exist: the Limerick Society for the Prevention of Cruelty to Animals and Limerick Animal Welfare.
The matter was originally heard by the Commissioners for Charitable Donations and Bequests to determine the proper recipient of the bequest. The Commission consists of three High Court justices and a retired Supreme Court justice. It decided that, because it could be determined that Ms. Burke intended to benefit charities that protect animals from cruelty and that both work toward this same charitable purpose, the five hundred thousand euros should be split equally between the two charities.
Now, the Limerick Society for the Prevention of Cruelty to Animals has appealed the Commission’s decision to the High Court, claiming that it is the successor organization to the Limerick branch of the Royal Society for the Prevention of Cruelty to Animals. The matter will return to court next month.
In such circumstances, Ontario courts will similarly apply the cy-pres doctrine to determine the “general charitable intention” behind a gift and to prevent the failure of a charitable bequest for uncertainty.
When making a bequest to a charity, it is important that the charity is properly identified, such that a Court Application concerning the interpretation of the relevant Will will not be required to give effect to the testator’s wishes.
Thank you for reading.
A recent article in the Daily Mail tells the story of Bella Mia Bolasny. Bella Mia lives a life of luxury. She travels around the world, eating at five star restaurants. Her specially designed walk-in closets hold more than a thousand outfits, not to mention jewellery. She was given an allowance of $100,000 a year to put towards hair and fashion. In her spare time, Bella Mia gives back to the community by visiting the Ronald McDonald House each week, as well as visiting nursing home residents and spreading cheer.
Bella Mia’s mother, Rose Ann Bolasny, recently changed her estate planning to provide that Bella Mia will inherit a newly purchased home in Florida. She is also a beneficiary of a significant trust.
Bella Mia is three years old. She is a dog.
Bella Mia’s mother is not the only one making arrangements for the care of her pet for when she is no longer around. Pet care can be very costly. Food, grooming, and veterinary bills can very quickly add up to tens of thousands of dollars over the course of a pet’s lifetime. Asking someone to take on a pet after your death can be asking that person to accept quite a burden. In order to ease this burden, it may make sense to leave some money for the care and maintenance of the pet.
Pets are, at least legally, not considered to be human and therefore they cannot own property in their own right. For this reason, money should not be left directly to a pet. Further, depending on the jurisdiction, leaving money to a person for the purpose of taking care of a pet may be invalid. Under Ontario law, it is possible that this would be treated as a purpose trust, which are, in most cases, invalid if the purpose is not a charitable one. The care of a Maltese would be unlikely to meet the definition of a charitable purpose under Ontario trust law, but It is difficult to find a case that’s on all fours.
For Ontario pet owners, an option might be to simply leave a gift to the person you intend to care for the pet, paired with a wish that the money be used for that purpose. The wish would likely be unenforceable, however. A testator setting up this kind of arrangement should be careful to find someone trustworthy who loves your pet as much as you do.
During a recent drive, I tuned into an episode of CBC Radio’s Tapestry, an interesting program that focuses on issues of faith, spirituality and religion. This particular episode featured stories and interviews on the subject of ashes and cremation. As an estate litigator, a profession that is intrinsically linked to death and dying, the episode grabbed my attention.
Of particular interest was a segment called “Ashes Through the Ages.” This portion of the show was comprised of an interview with Professor Douglas Davies of the University of Durham in England. Professor Davies is an authority on the history, theology and sociology of death and co-editor of the Encyclopedia of Cremation.
The interview deals mostly with the cultural history of cremation, a practice that goes back to ancient times and one that differs immensely across cultures and geographic locations. In India for instance, cremations are often very public outdoor rituals. In the West however, cremations are extremely private affairs. The body is burnt indoors in a private facility and the ashes are provided to loved ones so that they may perform a variety of personal rites and rituals.
In our society, ashes are usually either kept in an urn in a surviving loved one’s home or scattered in a place that holds some personal significance to the deceased. I’ve heard many touching stories of ashes being scattered in places such as a body of water where the person who has passed liked to fish, a golf course where they spent many hours playing golf, or simply a park where they liked to sit and enjoy nature.
Professor Davies mentioned one particular cremation practice I had never heard of before: turning a loved one’s ashes into gemstones. Because ashes are essentially carbon, they can be compressed into gemstones and turned into jewelry for a surviving loved one to wear as a reminder of or physical link to the deceased.
While you might think that this is a new idea, Professor Davies pointed out that people have been putting deceased loved ones’ locks of hair into lockets worn as necklaces for centuries. In my mind, this is merely a more modern and technologically advanced version of that practice. It’s also much more expensive. These “memorial diamonds” can range from $3,500 – $20,000 depending on the desired size of stone. Also, for animal-lovers, they can be made from a beloved pet’s ashes as well.
To my surprise, when I mentioned to a colleague that I had just heard about this practice, he informed me that his mother had in fact requested that her ashes be made into a “memorial diamond” upon her passing. She likes the idea of her ashes being turned into a shiny diamond as opposed being in an urn or in nature.
While I don’t see this practice becoming as commonplace as other cremation rituals, it is an option that some might want to consider when planning for their deaths. If you do find yourself wearing a ring made from a loved one however, make sure to be extra, extra careful around sinks and toilets.
A recent US article, Curiosity Saved The Cat: Judge Blocks Execution of Feline, caught my attention as it dealt with a testator who loved animals so much, that she not only bequeathed all of her $1.3 million estate to animal charities, but also included a clause that her cat, Boots, was to be euthanized. It turns out that the testator left this provision on the basis that “[the testator] was so afraid that if something happened to her that the cat would not be taken care of and she’d go to another abusive home…”.
Digging a little bit deeper, it turns out that judges closer to home have had to deal with similar types of issues. In the New Brunswick decision of Wishart Estate (Re),  N.B.J. No. 547; 46 E.T.R. 311, a case which should be read by any horse lover, Riordon J., was faced with a similar provision pertaining to the testator’s four horses: Barney; Bill; Jack; and King. In his Will, the testator included the following term:
“I DIRECT AND DECLARE that my Executors have my horses shot by the Royal Canadian Mounted Police and then buried".
It turns out that the intention of the testator was also premised on the basis that he was afraid that his horses might fall into the hands of anyone who might abuse them. There was ample evidence to indicate that the testator loved his horses.
As judges must base their decision on the law, as opposed to their free will, the question of whether the above-noted testators’ wishes should be carried out is a question of public policy, a topic that has recently been blogged about here and here. Put rather succinctly, Riordon J. states, “[t]he term ‘public policy’ cannot be comprehensively defined in specific terms but the phrase ‘against public policy’ has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society”.
Riordon J., went on to hold that, “[o]bviously public policy is a very general term, difficult to define and a determination of what is against public policy can of course be subjective. In my opinion, the destruction of four healthy animals for no useful purpose should not be upheld and should not be approved”. Animal lovers rejoice, both the clauses pertaining to the four horses, as well as those pertaining to Boots, were struck down.
What I find interesting about this judgment is not so much the decision to save the animals, but the recognition by Riordon J., of the subjective nature of public policy. Although many, I am sure, are happy that the animals were saved, it does raise questions as to how other animals would be viewed by the Courts if they were not deemed to be pets. Having a philosophy background, I always find it interesting to see how these subjective areas of law are grappled with by the Courts.
I would also like to note the link kindly provided to us by Lifeinsurancequotes.org, 7 Famous People With Controversial Wills, which may be of interest to our readers.