The Cats Win, The Dogs Lose: Court Upholds the Validity of Pet Trust For Cats

By  Peter K. Kelly |

Leonore Abels in her Will provided that her residuary pass in trust for her husband Joel Abels and, in the alternative should he predecease her, all of her property be sold, except her house, and held by the trustee to maintain her home, to pay a salary and bonus to her housekeeper to care for her cats.  Upon the death of the last cat the house was to be sold, a bonus paid to the housekeeper and remainder distributed to various animal oriented charities.  Leonore died in February 2007 after Joel and an inventory of her assets reflected an estate of $4,761,346.  In 2014, the executor commenced a proceeding to reduce the amount of money funding the pet trust and to permit the sale of decedent’s home.  At the time of the petition decedent had only two cats living, Gindy, seven years old, and Poke-A-Dot, nine years old. 

The executor alleged the home needed significant repairs and taxes and upkeep are very expensive.  He sought to reduce the funding of the trust to $440,000 or to one million reduced by $628,000, the amount already expended for the cats.  The petition was opposed by the housekeeper. 

The executor argued the house could be sold and the housekeeper and cats moved to less expensive residence, the remainder could be accelerated and the trust qualify as a charitable remainder trust reducing estate tax liability. 

The Court denied the petition finding that the executor sought to cast aside the decedent’s carefully calculated instruction as to how her cats were to be cared for.  The Court found that the primary object of her bounty was her cats, not the charities and if she intended to benefit the charities over her pets and create a charitable deduction, the instrument could have been drafted differently.  The Court distinguished Matter of Helmsley [enhanced opinion available to lexis.com subscribers], where the pet trust for the dog, Trouble, was reduced from $12 million to $2 million as overfunded for carrying out the decedent’s wishes.  EPTL 7-8.1(d).  Noting that commentators suggest that pet trust planners recommend that testators place their residence or farms in trust to properly care for the animals and insure that the animals remain together in familiar surroundings, the Court found that Leonore Abels did precisely that in her Will.  See, Carlisle and Franken, Drafting Trusts for Animals, 218 NYLJ 1 (Nov. 13, 1997). 

Gindy and Poke-A-Dot won this one and Trouble had to settle for a more modest life without his owner.

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