As previously described, New Jersey’s Pet Trust statute should be amended to better define those animals who can be cared for by the provisions created in the trust. Specifically, the term “domestic” should replace “domesticated” in the statute, and the terms “domestic” and “pet” should be defined. The definitions of “animal” “domestic” “domesticated” and “pet” have been litigated in many states, particularly when these terms were not defined in governing laws, or the definitions were considered constitutionally vague.
As a general rule, statutes should be drafted to minimize any ambiguity that may exist and provide clear direction to the public about what the statute actually means.
New Jersey is the only state that includes the term “domesticated” in its Pet Trust statute. 11 states (California, Washington, Arkansas, Montana, New Mexico, Oklahoma, Hawaii, Illinois, Michigan, New York, and North Carolina) use the term “domestic” but not “domesticated.”
The term “domesticated” is problematic because it implies that a trust may be valid if the designated animal of the trust is any animal the owner considers to be “domesticated,” regardless of whether the owner can legally own such an animal in New Jersey. For example, if someone in New Jersey wanted to own an animal considered by the State to be a “potentially dangerous species,” they would have to obtain a special permit. The owner’s determination that a “potentially dangerous species,” was “domesticated” or their “pet” would not be sufficient.
In addition, the terms “domestic” and “pet” in the Pet Trust statute should incorporate existing definitions in NJ statutes and/or regulations. “Domestic” should be defined as “domestic livestock ” and “domestic companion animal” and “pet” should be defined as “domestic animal” or legally owned “exotic animal.” Incorporating the existing definitions of these terms would provide clear guidance to the public about what these terms mean.
As importantly, referring to these defined terms will also shed light on the same regulations that specify which exotic animals can be legally owned in NJ and which require special permits. For example, annual permits are required for commonly owned species including, e.g., ferrets, hedgehogs, chinchilla, parrots, macaws, pythons, boas, and geckos. Permittees must demonstrate that the animals will be treated as required by regulation to obtain the permit each year. These permits are valid only for the permittee on record.
The general public and some attorneys may not be aware of these restrictions, and therefore may not adequately provide for the continued care of the designated animal by a subsequent owner or caretaker, who would have to apply for, qualify for, and obtain any required permit.
Individuals serving as trustees or guardians and the animal’s owner are best served if such restrictions are understood before drafting the trust instrument so that proper accommodations can be included therein. Furthermore, if it is illegal to own a particular species in NJ, any trust instrument drafted to provide for such an animal could be invalidated.