Even a pet-trust instrument needs to be free of ambiguities and unaddressed contingencies

Charles E. Rounds, Jr. - Suffolk University Law School

There are two flavors of pet trust, the Uniform Trust Code §408 pet-trust and equity’s non-statutory pet-trust. Under the former, the pet is a trust beneficiary; under the latter, the pet is merely a trust asset. While it may be emotionally satisfying to have one’s pet deemed a human being in one’s estate plan, equity’s pet-trust regime, which exploits the pet’s common-law status as property, is the better option if securing the health and welfare of one’s orphaned pet is of primary concern. The critical issue of enforceability is better addressed. We explain in §9.9.5 of Loring and Rounds: A Trustee’s Handbook (2024), which section is reproduced in the appendix below.

In Matter of the Estate of Jablonski, 214 N.E.3d 1051 (Mass. 2023), a UTC §408 testamentary trust was to be established for Licorice, a dog. See https://www.socialaw.com/services/slip-opinions/slip-opinion-details/in-the-matter-of-the-estate-of-theresa-a.-jablonski. Upon Licorice’s demise the trustee was to distribute the balance of the trust estate to charities of the trustee’s choosing. Licorice, however, had predeceased the testator. Was the probate estate to be dedicated to charitable purposes or did it pass by intestate succession to the testator’s heirs at law? While the contingency of Licorice predeceasing the testator should have been addressed directly, namely “Should Licorice predecease me, then…,” it seemed to the motion (summary judgment) judge, and it seems to me, that it had been addressed, albeit in a round-about way. According to Article IV of the will, all remaining property, including “all lapsed legacies and devises or other gifts made by this [w]ill which fail for any reason” was to be given in trust to the trustees of the trust that was to be established in Article V of the will for the benefit of Licorice. In essence, a testamentary trust was to be established under article IV rather than Article V, Licorice having predeceased. Accordingly, the motion judge ordered that the charitable remainder provision be given effect under the doctrine of acceleration of equitable remainders. The doctrine of acceleration in the trust context is taken up in §8.41 of the Handbook (2024).

The Massachusetts Supreme Judicial Court disagreed. Extrinsic evidence needed to be solicited on the question of whether acceleration would conform to what the testator had intended. Otherwise the probate estate shall pass by intestate succession, no testamentary trust having been established for Licorice.

The practical take-away from Jablonski is that a UTC §408 standardized testamentary pet-trust instrument still needs to be fleshed out to address directly and unambiguously all possible contingencies applicable to the particular situation. Think the contingency of Licorice predeceasing the testator.

I would add that in the case of a non-statutory inter vivos pet trust, which was not the subject of Jablonski, the unaddressed contingency is likely to be the pet having survived the specified life of the trust itself. To address that contingency, consideration might be given to continuing the trust beyond the specified date. Only the equitable interest would vest in the remaindermen. Legal title would remain in the trustee until the pet had deceased, at which time the trust would terminate once and for all. Terminating distributions would then be made free of trust to each then living remainderman. As to each then deceased remainderman, his/her share would pass free of trust to the remainderman’s successors in interest. Rights any remainderman might have, or not have, to income and principal up to the time of the trust’s final termination should be fully and unambiguously addressed at the drafting stage.

Please see full publication below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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