Past Forum Issue: How Much Is Enough

Should a court be able to reduce the amount of funds designated by a pet owner for the purpose of taking care of a pet after the pet owner's death?

Most modern pet trust statutes, at least those modeled after the Uniform Probate Code or the Uniform Trust Code, allow a court to reduce the amount of funds left to care for a pet during the remainder of its lifetime to what the court thinks the amount designated "substantially exceeds the amount required for the intended use."  Do you think that this is proper?

Our 2 cents:

The issue of setting limits on how much one can leave for the care of a companion animal involves the concept of "testamentary freedom."  That is, under the law of property and with few exceptions, an "heir" has no legal "right" per se to inherit from his or her ancestors.  Rather, each property owner has a right to transfer or dispose of his or her property however he or she chooses after the payment of his or her taxes and debts.

Of course, the presumption of testamentary freedom is not without limits.  For example, a person cannot completely disinherit a spouse or children who need his or her support.   Also, one cannot condition a bequest upon the beneficiary divorcing a particular person, since upholding such provisions would undermine the institution of marriage.

In this case, however, the question is whether disinheriting "real people" in favor of a companion animal is an exception to property rights that we need to impose as a society.  The infamous case of Doris Duke is often cited as a specific example of why testator's should be limited as to what they can leave to their companion animals.  But would society have come to an end if a pet trust had been set up for Doris Duke?  (5/30/05)