Limiting Pet Owners’ Wishes For Their Pets Set Forth In Their Will Based On Public Policy Concerns.

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Fox Rothschild LLPA NJ bill just introduced would prohibit enforcement of provision in decedent’s will that would require euthanasia of healthy domestic companion animal.  See S4060 and sister bill A5691.

As used in this act:

(1) “Fiduciary” includes executors, general administrators of an intestate estate, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequendum, administrators ad litem and other limited fiduciaries.

(2) “Domestic companion animal” means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law, for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.

  1. Any provision in a will that directs the fiduciary to euthanize a healthy domestic companion animal is against public policy and is void and unenforceable.

As explained in the bill Statement, “[t]he bill was prompted by reports in March 2019 that a healthy Shih Tzu in Virginia was euthanized pursuant to her late owner’s will. Reportedly, a local animal shelter had offered to hold the dog for adoption, but the executor declined. The executor brought the dog to a vet, where she was euthanized.”

Courts in the Third Circuit have already held that provisions in wills requiring euthanization of healthy dogs was void against public policy.  See In re Capers Estate, 34 Pa. D. & C. 2d 121, 127 (Orphans’ Ct. 1964).  However, clearly, this is not always the case in all jursidictions.

If the intent of these bills is to provide for “pets” then the term “Domestic companion animal” should be amended to exclude “Domestic livestock” defined pursuant to section 1 of P.L. 1995, c. 311 (C.4:22-16.1).  This would avoid confusion about certain species like horses, defined as domestic livestock in NJ, but may not be used for business or agricultural purposes by certain owners.  If not provided for in testamentary instruments like wills or trusts, a stable may assume ownership of a horse if payment for board or other expenses ceases upon the death of the owner pursuant to the Stableman’s lien law (N.J.S.A. 2A:44-51).

The sponsors should also consider including amendments to N.J.S.A. 3B:11-38 (Trusts for care of domesticated animals), currently proposed as A1507 which clarifies provisions with regard to pet trusts.  If so amended, this bill would comprehensively permit pet owners to provide for their pets appropriately after they can no longer do so.

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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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