Many of us love and cherish our pets and want to ensure their safety even after we are gone. Some may wish to make specific accommodations for their pets via inter vivos or testamentary pet trusts. Others may “keep it simple” by merely bequeathing their non-human companions to someone they know and trust. But what happens when owners leave provisions in their wills asking for their pets to be euthanized humanely after the owners die? While most courts in the past have refused to enforce these provisions, their justifications vary from the testator’s “true” intent to public policy and the anti-waste doctrine. Kaity Y. Emerson and Kevin Bennardo provide a thoughtful analysis of some of these justifications. They ultimately conclude that the anti-waste doctrine provides the most straightforward argument against dead-hand control. They discuss background on the legal status and value of animals, dead-hand control and its limitations, relevant caselaw, and finally provide their advice on how this issue should be handled in the future.
Pets have consistently been recognized as the personal property of their owners, who are free to treat them as they wish, barring animal cruelty. Courts apply this concept by allowing claims for wrongful death or negligent harm to a pet. In these cases, an owner may recover damages stemming from economic harm, but may not recover for emotional damages or loss of companionship. While courts disagree on the amount of recovery for such charges, even mixed-breed animals can yield some amount of recovery. Like tort law, bankruptcy law also recognizes animals as property. A companion animal may be listed as an asset and is given an exemption, allowing debtors to retain their pets in bankruptcy proceedings. By looking at other areas of law, we see clearly that animals have value as their owner’s personal property.
Even though pets are considered personal property, legislatures have enacted laws to prevent cruelty against animals by their owners. Humane euthanasia, however, does not fall into the category of cruelty, even if it is done for convenience rather than necessity. Many shelters must euthanize pets to preserve resources, and sometimes the procedure is used to put an animal that is living in pain out of its misery.
Testators typically have the freedom to dispose of their property as they see fit, which includes their pets. Our legal system values testamentary freedom and it is vital in motivating individuals to earn and save their assets instead of spending everything they have before their deaths. This dead-hand control, while beneficial, has exceptions. These exceptions include the forced shares for surviving spouses in common law marital property jurisdictions, the Rule Against Perpetuities, the slayer rule, non-enforcement of provisions that would violate public policy, and the anti-waste doctrine. Rules were also adopted to ensure that wills are properly interpreted by limiting extrinsic evidence and prohibiting changes to the language of a will to clarify intent. These rules function to prevent fraud and preserve the testator’s original intent.
As masters of their personal property, pet owners have a right to decide what should be done to their pets and thus owners may humanely euthanize them while alive. If pet owners request the euthanasia of the pet in their wills and no one objects to it, then their wish will be carried out. Yet, when the provision is questioned, it is often found to be legally unenforceable. Emerson and Bennardo demonstrate this reality through the presentation of two case studies, In re Capers’ Estate and Smith v. Avanzino, where courts held that the euthanasia of a testator’s dogs was legally unenforceable. The court in Capers’ Estate relied on three arguments against the euthanasia provision which are the focus of this article’s discussion.
First, the court in Capers’ Estate argued that the testator did not actually intend for the humane euthanasia of her pets. This analysis stems from the belief that the owner did not truly wish for her pets to die, but rather feared that they would grieve their owner and not receive the same amount of care by another to which they were accustomed. Modern courts continue to cite this rationale, but Emerson and Bennardo note that the argument may not be very effective when testators make it expressly clear that they want their pets euthanized regardless of the circumstances. Additionally, such an argument may lead to the misinterpretation of wills, and the potential for the will to be rewritten in a way that the testator would not have wished.
Second, the court in Capers’ Estate argued that upholding a humane euthanasia provision would violate principles of public policy, specifically a policy in favor of preserving the life of all living creatures. They stated that ending the life of two dogs without a valid reason would go against a person’s ethical duty. They proved this by pointing to the media attention and letters received from the concerned public throughout the case. This argument reappears in more recent appellate opinions, but the large amount of euthanasia and animal deaths that occur daily may discredit this point. Furthermore, no legislation has been passed against widespread euthanasia despite media attention, which detracts from the idea of a public policy to protect all life. The public generally accepts the killing of animals for food, clothing, in shelters, and for laboratory testing, so to say that an individual euthanasia in accordance with a pet owner’s will violates public policy may be a stretch.
Finally, the court in Capers’ Estate argued that the provision violated the public policy principles that relate to anti-waste. The anti-waste doctrine provides that a testator may not attempt to destroy property by a will provision. There is no specified dollar threshold for the anti-waste doctrine, so it may apply even to an item with minimal value. Recent court opinions have relied on this argument less frequently, but the authors argue that it is the most persuasive of the three and the only one necessary to prevail successfully over euthanasia provisions in the future.
Although some may argue that pets do not have value, or even have negative value due to the cost of their care, the treatment of animals in other areas of law clearly indicates their value as personal property. While the anti-waste doctrine is typically not applied to low-value assets, waste can occur when even property of small value is destroyed. Pets are a unique type of property, and often are viewed as having a value greater than their economic cost, making it more likely that people will be motivated to intervene to prevent their destruction. Emerson and Bennardo argue that the anti-waste doctrine is the most effective argument, and the only one of the three that should be utilized in the future.
Through this article, authors Kaity Y. Emerson and Kevin Bennardo shed light on an issue of which many may be unaware, affecting the lives of the animal companions that many hold so dear. I appreciate the clarity that their analysis brings to the issue, and the straightforward solution they present for future courts to implement. This article was both enlightening and enjoyable and will provide its readers with a unique interpretation of the dead-hand control and anti-waste doctrine that they are sure to remember.
[Special thanks for the assistance of Emily Spjut, J.D. Candidate May 2023, Texas Tech University School of Law, in preparing this review.]
