The failure of people to provide for their pets in the wills is a very sad and avoidable situation. Some estimates say that only about 50% of the residents of Ontario have a final will and testament. Of these, only a small minority even mention the pets of the testator.
One of the basic rules of estate law in Ontario is that we have to provide for our dependents in our wills. In other words, if someone lives with you and/or depends upon you (like a minor or someone with a disability), you have to ensure that they are provided for in your will. You cannot just ignore them. If you fail to provide for them in your will, they may be able to effectively and successfully challenge the will. If you have undertaken a responsibility for them in your life, the law expects your estate to continue to be responsible after your death.
Who is more dependent upon you than your pet?
Unfortunately, there is no provision in Ontario law (or Canadian law to the best of my knowledge) requiring people to provide for their pets in their wills. This is because under Ontario law, a pet is just a piece of property, just like a fridge or a chair.
There are approximately 40 states in the United States that recognize pets as legal entities. In these state, you can actually leave a bequest to your pet to make sure that there is money for their ongoing care and maintenance. However, in Ontario you cannot leave anything to your pet in your will. This is because pets are just “property” and property cannot own property, any more than a table can own a chair.
So what happens to your pet if you die with no will? The pet gets treated like the rest of the furniture. Under the intestacy rules, your heirs are determined by law. If there is more than one, your property gets divided between them. That can be hard on a pet.
What if none of your heirs want your pet? There can be issues of cost, or allergies, or incompatibility. Surely, you are the one that knows best where and with whom your pet should go if anything happens to you. But the only way you can designate this is by having a will.
So how is this person you have picked going to pay for the pet? Under Ontario law, you cannot leave money directly to the pet. However, you can instruct that your executor or lawyer establish a trust, into which money can be deposited from the estate, to be utilized for the ongoing costs of the pet, from feed to vet bills.
The point is that without proper provision being made in a will to protect a pet, a judge or the Public Trustee may eventually be the one making the decision for you. In all likelihood, that will not be good for the pet.