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SAMPLES FROM
THE AVICULTURAL JOURNAL


Contents:
Toxic Plants
Creating A Trust for Your Parrot


Creating A Trust To Take Care of Your Parrot

This paper was prepared by Dunstan Browne and Kelly Off, both lawyers of the firm of BROWN TWEEDIE, Victoria, British Columbia, Canada, for the 2nd Canadian Parrot Symposium (West) (The Avicultural Journal, 1999, Vol. 22. #2)

The purpose of this paper is to assist in understanding the legal basis for dealing with the question of making provision for the maintenance and care of your pet parrot after your death. From the earliest days of civilization, the question of taking care of your loved ones after your death has always been a subject of great importance and concern. In fact, the law insists that you make appropriate or adequate provision and provides safeguards for your loves ones. In British Columbia this is achieved through such legislation as the Wills Act, the Estate Administration Act and the Wills Variation Act. Most other similar jurisdiction in the Western World have similar statutes.

So what about loved ones that are of the feathered variety, and in particular parrots? The law not only fails to safeguard their needs and interests but, as we will see during this discussion, it makes providing for pets a tricky venture.

Throughout history, man has had a particular fascination with birds; for their beauty and their ability to fly. Exploration and travel to Africa, South America and the Pacific during the early days of exploration in particular brought the European and subsequently the North American cultures into contact with Parrots of all shapes and sizes. This started a love affair with these beautiful birds which has grown over the ages.

Apart from their beauty, their capacity to relate with and bond to humans has made them a most desirable pet. Their ability to mimic the human voice has made them a particular favorite. With those attributes goes another, longevity; parrots are known to live for many years ( some to well over 100 years ). This makes it imperative for prospective parrot owners to think very carefully before acquiring a parrot and once acquired about what should become of it upon their death and how to make appropriate or adequate provision for their care and well-being.

The most important legal problem is that, however much we would wish it otherwise, the law regards a Parrot as an animal and consequently a thing. It does not have the capacity to own property or to deal with a gift and therefore you cannot simply leave a sum of money or a piece of property directly to your bird.

There are however several ways which the law recognizes of ensuring that your parrot is cared for after your death.

PERSONAL GIFT

The first way that this can be achieved is by leaving your parrot to some person. What you am really trying to do is to ensure someone will have a responsibility to provide care to the bird. You can simply give your bird to a specific person as a gift in your will:

"I give my parrot, "Polly“, to my brother, John Doe, if he survives me, PROVIDED that if the said John Doe predeceases me then I give my bird to my sister, Jane Smith, if she survives me, PROVIDED FURTHER that if the said Jane Smith also predeceases me then I DIRECT my Trustee to find a caring and loving home for my bird."

You must take care, however, when gifting pets that you choose a recipient who will have the desire, the ability, the know-how and the means to care for your pet. You may see your bird as another member of your family, whereas someone else may see the same bird simply as an obligation imposed on them. What is more, unless you actually talk to the recipient in advance or somehow convey your wishes, it could be that the recipient of your precious bird would simply give it away to someone you do not know. One way to avoid this is to include a precatory request for care in the gift:

"I give and bequeath my birds to my friend, John Doe, in full confidence that he will care for my birds during his lifetime."

If the chosen recipient of your bird is also the recipient of a gift of part of your estate, you might be able to create a moral obligation to provide care:

"I give, devise and bequeath the rest and residue of my estate to my brother John Doe, for his own use absolutely: It is my sincere desire, and I so request, that my brother protect and care for my birds in the same manner as I have done during my lifetime."

Once again, however, a clause of this nature expresses a desire that your birds be cared for, but you have not imposed an enforceable obligation. Expressing your wishes in this way may be sufficient if you are certain that the person you are leaving your birds to is the type of person who is interested in providing the same degree of love, care and attention that you birds received from you.

BEQUEST IMPOSING AN OBLIGATION

An even stronger method of imposing an obligation to provide care is to make a bequest conditional upon providing for your pet.

"I give, devise and bequeath to my sister, Jane Smith, the sum of $10,000.00 on condition, however, that she agree to provide a suitable home for my bird, "Polly," and maintain her in the same manner and at the same level of comfort which I have done during my lifetime. My bird shall be given a place to sleep and be kept well fed. In the event my sister, Jane Smith, refuses to care for "Polly" in the manner prescribed, this bequest shall lapse and be distributed as a part of my residuary estate."

Even with this type of bequest, however, there are problems. For example; who is to determine whether the level of care provided for "Polly" is adequate?; what happens when the sister has spent the $10,000.00 (even if it is spent for worthwhile purposes)? There is still the issue of the recipient of your bird having the means to provide the level of care you would wish for your bird. And once the birds become a financial burden on the sister, it often happens that the motivation to provide the desired degree of care may wane.

TRUSTS

The obvious solution seems to be to leave the money directly to the bird to ensure that the money will be used to provide the appropriate care for the bird. As stated already, however, this is not legally possible -- with one exception; a trust fund may be created to provide for the bird.

The trust is a fairly complex legal concept, so we will discuss that concept in general terms initially and then apply what we learn to the purpose at hand, that is, providing care for your birds.

So what is a trust? In simplistic terms it is a legal arrangement whereby one person, called the settlor, transfers property to another person, called the trustee, for the benefit of a third party, called the beneficiary. So far, it sounds pretty simple.

The law, however, has imposed many restrictions, limitations and regulations regarding the establishment and operation of trusts, largely due to the degree of power and autonomy bestowed upon a trustee who becomes the registered owner of the property which is the subject of the trust. A trustee is normally given a great deal of discretion in how to deal with property that has been entrusted and, therefore, there must be safeguards to protect the interests of the beneficiary.

How is a trust created? In fact there are many different types of trust that can be created in a variety of ways. For our purposes, however, we will limit this discussion to express trusts; that is, trusts which are created by clearly and specifically stating that you wish certain property to be held on trust for a certain purpose.

TYPES OF TRUST

The express trust may be inter vivos, or a living trust, which means that you are alive when you create the trust. It can be created by way of an indenture or trust deed, and the trust may take effect while you are still alive. Alternatively, an express trust may be testamentary trust, which means that the trust is created through your Last Will and Testament and it takes effect upon your death.

CONTENTS OF TRUST

When a trust document is created, it should stipulate exactly what you want to do. At the very least the trust document should clearly set out the following information:

Firstly, it should state the purpose of the trust and the nature of the beneficial interests. For example, it should state that you wish to establish a fund to provide for the maintenance and care of your pets after your death.

Secondly, the trust document must set out precisely what property is to be placed in the trust. Here you determine just how much will be required for the maintenance and care of your pets for their anticipated lifetime (taking into account such things as food, shelter, veterinary or other ancillary expenses) and dedicate that sum to the trust. Alternatively you may wish to place more than you know will be required to maintain and care for your birds, with the residue after the death of your birds to be left to a specific person. If you do not specifically provide for a residuary legatee (that is, someone who will inherit the balance of the trust fund once your birds have died and the fund is not longer required for their care and maintenance), then the balance of the trust fund, if any, will be added to the residue of your estate and will pass to your heirs in terms of your will.

Thirdly, you must stipulate the length of time the trust will last. This time period can be stated either as a specific number of years or as a period of time which will determine upon the happening of a specific event, such as death.

Fourthly, the beneficiaries of the trust must be clearly set out so that there is no uncertainty. in the case of human beneficiaries you would give their name, address, relationship to you and any other pertinent information which would enable them to be quickly identified. in the case of your pets, you would need to stipulate a number, breed, gender, colouring and any other relevant information that readily identifies them.

Fifthly, you must appoint a trustee. This is one of the most important elements of the trust document. In choosing a trustee for the maintenance and care of birds, you may wish to consider your spouse, (especially if he or she has been involved in the care and maintenance of your birds); a good friend (who perhaps shares the same interests being careful not to be asking too much of a friendship), or a relative (which is probably a good choice if selected carefully as relatives are most likely to be concerned with and have a continuing genuine interest in following your wishes). It is also very important to appoint an alternate trustee who will assume this role in the event the first trustee dies or is otherwise unable or unwilling to commence or continue to act as trustee. it is essential with this type of a trust (and you will understand why as we continue) to ensure that your trustee is willing to act as such and that this appointment will not come as a surprise.

POWERS OF TRUSTEE

The trust document should set out as clearly as possible what powers the trustee is to have. For instance, you will want to grant to your trustee certain powers to invest the funds you leave to the trust. This will allow the trustee to preserve as much of the capital as possible to ensure a continuing ability to provide care. You can make these powers very broad or limited or you may wish to provide the trustee with the power to seek professional assistance in this matter. In addition, you may wish to provide for a power to use capital funds in order to ensure that sufficient funds are available to pay for extraordinary veterinary bills or other unforeseen expenses in times when interest rates are low. These are just a couple of examples of the many powers that can be provided to a trustee to enable him or her to carry out your wishes with the greatest efficiency.

You should also stipulate what duties the trustee is to have (other than the obvious fulfillment of the terms of the trust and other than those imposed by law). For example, there is often a duty imposed to report annually to beneficiaries (or to those acting on behalf of the beneficiaries) so that the performance of the trustee can be closely monitored.

It is also a good idea to stipulate the benefits in fees and kind or other compensation that you would like your trustee to receive in return for his or her efforts. Although there are statutory fees which normally equate to a percentage of the trust fund established, you may wish to review this provision to ensure the stipulated amount will be sufficient to compensate for the amount of effort that will be required of the trustee. In addition, especially with a trust of this nature (and you will understand why more fully later) you want to ensure that the trustee will be compensated to an extent that will ensure he or she is motivated to carry out this function.

It is very important to take great care in establishing the trust is that the document It will become the trustee's sole source of direction as to what your real intentions are. Even in the case of an inter vivos trust, once you have appointed a trustee, created the trust and transferred the property to the trust, you have no more role in the operation of the trust and the trustee cannot look to you for direction or clarification. If the trust was created through your will, this will be the only source of information and direction the trustee will have to be able to carry out your wishes as you will not be around to provide clarification.

LEGAL PRINCIPALS

Having said all of that, there are a number of important legal principals behind the law of trusts, which make setting up a trust for the benefit of a pet a much more difficult proposition.

There is a general rule that a trust must ordinarily have ascertainable human beneficiaries in order that there is someone who is able to enforce the trust. Normally, a trust set up for a specific purpose will be found to be invalid as there is no person to enforce it and the government is not willing to step in and act on behalf of a pet. Purpose trusts which are not charitable and which are not enforceable by or on behalf of any human beneficiary are known as trusts of imperfect obligation.

There are a limited number of trusts that have been held to be enforceable, under certain circumstances, even though they are trusts of imperfect obligation. 'these include trusts for the maintenance of animals. Trusts of this nature have been characterized as anomalous and exceptional and are subject to much stricter rules than ordinary trusts and so one must be much more careful in establishing this type of trust.

A trust for the care and maintenance of animals must also not violate the rule against perpetuities. This is a doctrine of law which, in very simple terms, states that you cannot set up a trust to last forever or in perpetuity. The trust can only last through the lifetime of a person who was alive at the time the trust was created, plus 21 years. In practice, the rule against perpetuities is much more complicated than this, however that explanation will suffice for our purposes.

The important thing to remember here is that the courts seem to have determined that the lives used to measure the period of perpetuities must be the lives of human beings.

Accordingly, if you;

(a) appoint your best friend to be the trustee and
(b) establish a trust fund for the purpose of providing for the care and maintenance of your birds until the death of your birds

If the life span of your birds is greater than 21 years, a court will likely find that the trust will fail after a period of 21 years. This is because, since you have not established the length of time of the trust on the basis of a human life, the court will use your life as the starting point for the perpetuity and the trust will fail 21 years after your death.

On the other hand, if you;

(a) appoint a young friend or relative to be the trustee and
(b) establish a trust fund for the purpose of providing for the care and maintenance of your birds for as long as the trustee and your birds live and so long as the birds are not given away or otherwise disposed of by the trustee, then the court will most likely be willing to use the death of the trustee as the termination point for the trust.

The message here seems to be that if you have birds which are likely to outlive you by a period in excess of 21 years, then the trustee you appoint should be someone willing to take on the responsibility of the care and maintenance of your birds, and someone who will outlive you by a period of longer than 21 years.

In reviewing the court decisions in this area, it also appears that you mast take care in determining the size of the fund set up to care for your birds.

There was a famous case in Victoria of the lady who loved her parrot so much that she created a trust in her will which provided that her parrot was to spend the rest of his life in a lovely old mansion, to receive an ounce of brandy each day, and to be looked after by an old Chinese servant. The parrot lived this way for many years and the courts did not interfere with the trust.

There have been many cases since then, however, where the courts have stepped in and have reduced the value of a trust fund set up for animals to only that amount which the courts felt would be required to carry out the purpose as stated. In these instances they have ordered that the balance of the trust fund pass immediately to the residuary legatee (or the person who was named as the beneficiary of the balance remaining in the trust fund upon the death of the animal).

One way to ensure the courts do not interfere in this way is to set out the trust fund as a formula. That is, stipulate that a fund is to be created which is equal to a certain reasonable sum of money per month for the anticipated lifetime of each of your birds and that the recipient of these trust funds apply the funds solely for the care of your birds. This allows a larger amount to be set aside for birds which are likely to live longer or for certain breeds which may require more care than others. When this type of calculation and reasonableness goes into determining a trust fund, a court is much more reluctant to interfere with it. An example of this would be:

"I DIRECT my Trustee to appropriate investments (my "Pet Fund") out of my general estate having a value at the date of such appropriation in the opinion of my Trustee equal to the aggregate of the after tax present value at the date of my death of (1) $_______ per month per Macaw during the anticipated lifetimes of each of my three Macaws and (2) $______ per month per African Grey during the anticipated lifetimes of each of my African Greys, and to pay or transfer my Pet Fund to my granddaughter, Janet Brown. I DIRECT that Janet Brown shall be subject to the trust obligation to apply my Pet Fund and the income therefrom solely for the care of my Macaws and my African Greys until the death of the said Janet Brown".

As we have seen, providing a loving and caring home for pets after your death can be complicated and fraught with potential pitfalls. Because of these potential problems it would be wise to consult a lawyer who is familiar with the laws applicable to your jurisdiction before attempting to create a trust either inter vivos or under your Will. Adequate forethought and careful drafting, however, can ensure that your much-loved pets will enjoy continued love and care throughout their days.

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