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On November 25, an Aurora, Indiana woman named Connie Lay passed away.  If your immediate response to this news is, “so what”, I would not fault you.  People pass away every day in this country, so what makes Ms. Lay’s passing special or noteworthy?  What if I told you that in her last will and testament she stipulated that her dog Bela be buried with her?  What if I went on to tell you that Bela, a German shepherd, is still alive and well?

Ms. Lay made provisions that in the event of her death, she wanted her friend to take charge of her dog and have Bela euthanized, cremated and buried with her, or sent to an animal shelter in Utah called Best Friends Animal Society.  If the option of sending Bela to Utah is too expensive or not possible, then Bela is to be euthanized.  Bela is temporarily being housed at PAWS of Dearborn County Humane Center in Lawrenceburg, Indiana while a decision is made.  Ms. Lay reportedly was concerned about Bela being around others due to the dog’s aggressive behavior. (http://www.newsnet5.com/news/bella-bequest-connie-lays-will-asks-for-still-living-dog-to-be-euthanized-buried-with-her)

As stated on a few occasions now by her lawyer, the request in and of itself, is a legal one.  Even though Bela is housed at PAWS, Bela is part of Ms. Lay’s estate and PAWS has no legal right or control over Bela.  This is not the first time an issue such as this has arisen.  In a 1964 Pennsylvania case in Alleghany County, In re Capers’ Estate, 34 Pa. D. & C.2d 121 (1964), Ms. Capers, the owner of two Irish Setters named Brickland and Sunny Birch, passed away.  In her will she stated that “I direct that any dog which I may own at the time of my death be destroyed in a humane manner and I give and grant unto my Executors hereinafter named full and complete power and discretion necessary to carry out the same.”  In placing such a provision in her will, that court analyzed Ms. Capers’s intent and determined that she was “deeply interested in the humane care and treatment of animals” and “feared that either would grieve for her or that no one would afford them the same affection and kindness that they received during her life.”  The court found no reason for carrying out the literal provision in the will and instead thought Ms. Capers’s intent would be best served by finding the dogs a good home.  The court went on to find that the pet-destruction provision was against public policy and that it “would be an act of cruelty that is not sanctioned by the traditions and purposes of this court, and would conflict with its established public policy.”

Other cases over the years have also found it to be against public policy to honor a provision in an individual’s last will and testament that called for the destruction of their animal companion or livestock.  In re Estate of Hack, No. 97-P-274 (3d Jud. Cir., Madison County, Ill. 1998), the court found that a will provision ordering the testator’s dog to be killed was against public policy.  In the case In re Estate of Howard H. Brand, an unpublished 1999 case out of the probate court in Vermont, the court refused to order the destruction of the horses owned by Mr. Brand at his death as against public policy.  In Smith v. Avanzino, No. 225698 (Cal. Super. Ct., San Francisco County, June 17, 1980), the testatrix’s will provided for the immediate destruction of her dog Sido upon her death.  The San Francisco Society for the Prevention of Cruelty to Animals obtained custody of the dog, and after much publicity and public outcry, the California legislature unanimously passed a statute, California Senate Bill 2509, that was signed into law one day before the court hearing, sparing Sido.  The court still proceeded to resolve the issue on the record stating that “to permit the direction of the decedent here to be carried out would, again, violate existing statute and be contrary to public policy.”

I think there are few among us that would be willing to say that the correct result was not reached in these cases.  As the court in Capers stated, “[m]an has come to realize that he has an ethical duty to preserve all life, human or not, unless the destruction of such other life is an absolute necessity.”  Unfortunately, regardless of public policy, in cases where the will is uncontested or any disagreements are resolved between the parties, there may not be an opening for the court to jump in to save the life of the animal.  As hard as it is for many of us to believe, there are also courts that feel the testator’s intent trumps competing interests vis-à-vis public policy.  For many animals, it is when and only when, public outcry and publicity reach a fever pitch, that their lives are spared.  A Twitter campaign #SaveBela has been started in an attempt to save Bela’s life.

A better option may be to avoid this situation altogether and to educate animal guardians as to the various options that they may have, such as a pet trust, for protecting and safeguarding their faithful companions after they have passed.

“If fortune drives the master forth an outcast into the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him, to guard him against danger, to fight his enemies, and when the last scene of all comes, and death takes his master in its embrace and his body is laid in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open, in alert watchfulness, faithful and true, even unto death.” – the late Sen. George G. Vest of Missouri

Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.