April 2007 #2. An Ode to Roxy Russell: A Look at Hawaii's New Pet Trust Law.

Authorby Emily Gardner

Hawaii Bar Journal

2007.

April 2007 #2.

An Ode to Roxy Russell: A Look at Hawaii's New Pet Trust Law

Hawaii State Bar JournalApril 2007An Ode to Roxy Russell: A Look at Hawaii's New Pet Trust Lawby Emily GardnerPet owners have long faced the possibility that their pets might outlive them. Many owners want to provide for their animals after they die, ensuring that their pets will enjoy the same quality of life- even without their owners there by their side. In the seminal case on the validity of a bequest to an animal in a will, Estate of Russell, 69 Cal. 2d 200; 444 P.2d 353; 70 Cal. Rptr. 561 (1968), the California Supreme Court held that the testatrix' gift of half of everything she owned, "real and personal" to her Airedale dog, Roxy Russell, was invalid and void. The court based its holding on the fact that Section 27 of the California Probate Code enumerated those entitled to take by will and that "Dogs are not included among those listed in Section 27. Not even Airedale dogs." While the holding in Russell may seem harsh to some (particularly pet owners), the law views all animals as a form of property, and it is impossible to leave property to property, which would have no legal standing to enforce the bequest. Nonetheless, one can't help but wonder what would have become of Roxy had the gift been deemed valid - the life she might have led.1

The tide has turned in the past few decades. During the late 1970s and early 80s, some courts began classifying pet trusts as "honorary trusts." See, Stewart Estate, 13 Pa. D. & C.3d 488; 1979 Pa. D. & C. Lexis 410 (1979). In Stewart, the Common Pleas Court of Montgomery County, Pennsylvania, held that while the establishment of a trust to care for the testatrix' three cats was an honorary trust, which could not be given effect because the decedent had not named a person, corporation, or association with beneficial interests capable of enforcing the duties of the trustee, there was precedent for creating a reserve of funds for the benefit of the cats, in order to accomplish the intent of the decedent. In validating the creation of a "fund" to care for the cats, the court noted the executrix' willingness to undertake the related responsibilities and allowed the fund to reflect "inflation and the rising cost of cat food."2

The recognition of pet trusts as honorary trusts by some courts was soon followed by the establishment of legislation. In 1990, the Uniform Probate Code ("UPC") was amended to include Section 2-907, which provided statutory recognition of honorary trusts for pets and domestic animals. It required the trust to end either twenty-one years after its creation, or when no living animal was covered by the trust, whichever came first.3 As illustrated in Stewart Estate, however, honorary pet trusts did not completely solve the problem given that they were generally deemed unenforceable because the decision to carry out the trust lay solely within the executrix' or trustee's discretion.

Great strides were made in 1993, when UPC Section...

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