As previously discussed, the New Jersey Pet Trust statute should be amended to recognize the validity of an inter vivos trust, and to allow the trust to provide for the offspring of gestating animals under certain conditions.
Inter Vivos Trust
The statute should permit a settlor to provide for their pets during their lifetime upon the settlor’s permanent or temporary incapacitation. Several states have included provisions for such inter vivos trusts, and other states have commented that such provisions should be added if their statutes are amended. Failure to recognize the validity of such trusts could render them invalid. The District Court in Connecticut found that a inter vivos trust established in New York, was invalid because New York’s pet trust “does not provide for the creation of an inter vivos trust for the care of animals.”
However the settlor of an inter vivos or testamentary trust should be limited to the animals’ owner. With increasing interests and disputes over the care of pets, the possibility that someone other than the owner of an animal will write a pet trust is more and more likely to occur. In Connecticut, a plaintiff, who had established a trust naming as beneficiaries 2 dogs she did not own, filed a lawsuit (Mittasch v. Reviczky) claiming certain laws permitting the seizure of the dogs were unconsitutiional. The Court dismissed the lawsuit, finding “no evidence — or even an allegation — suggesting that the Plaintiff has ever sought to exercise dominion or control over the dogs,” and that the plaintiff therefore had no standing to file the lawsuit.
Competing interests of owners will likely become more prevalent as more pets are included in custody agreements. Dueling owners could establish conflicting trusts for the shared pet, creating legal obstacles for the trustees or caretakers attempting to honor the owners’ intent. The recognition that shared ownership may result in contradictory trust instruments will help drafters avoid such problems and help ensure that the intent of each owner is honored.
The issue of conflicting legal rights over an animal was evident in an unrelated bill introduced in Connecticut that would have allowed “judges to appoint a volunteer to advocate for the best interests of an animal in a civil or criminal proceeding related to animal cruelty or fighting that affects the welfare or custody of the animal.” Concerned about the unintended consequences of this bill, the Connecticut Veterinary Medical Association testified that
“providing for an independent ‘animal advocate’ with legal standing apart from the animal’s owner. . . would alter the relationship between animals and their owners. The result will be that owners may no longer be able to determine what is best for their animals. In turn, this will adversely affect the ability of animal owners to choose appropriate animal care services.”
The N.J. Pet Trust statute should also be amended to expressly permit the extension of the trust to provide for the direct offspring of animals in gestation at the time the trust is activated, but prohibit the extension of the trust to clones, or other offspring resulting from reproductive manipulations.
Six other states (CO, KS, AL, PA, VA, SC, and ME) provide for the extension of the trust to the designated animal’s offspring, either expressly or in comments included in the annotated versions of the statute. By limiting a “valid” Pet Trust to the lifetime of the designated animals, an individual may be unable to provide for the offspring of their animals in the State.