Anyone with a pet knows that they are much more than property.
But as the recent case of Rocco Jr. shows, that’s not how the law views them.
According to a Toronto Sun report on the saga, the American bull terrier had been living with the girlfriend of his deceased owner since his death in 2022. She claimed her partner had gifted the dog to her before his death and that she needed him as an emotional support animal to help with her anxiety disorder.
However, in February, an Ontario Superior Court judge ruled that Rocco in fact belonged to the estate of the dead man, noting in her decision that dogs are “personal property much like other chattels (albeit indivisible).” Ultimately, she ordered the deceased’s partner to return the pet to his surviving sister, who was acting as executor of the estate.
“If you are a parent, you can imagine how you would feel if someone tried to take your child,” the deceased’s partner wrote on Instagram soon after saying goodbye to Rocco Jr.
Crucially, the will drafted by the deceased made no mention at all of Rocco Jr. – something he has in common with most dog owners. Despite regarding their pets as part of the family, in my experience many testators may forget to include their pets in their wills unless prompted.
Recent amendments to B.C.’s Family Law Act suggest a shift may be occurring in the way pets are treated under the law, moving away from the idea that they are personal property.
The changes reclassify pets as “companion animals,” requiring judges to consider the best interests of the pet itself when making decisions over its ownership or rights of possession.
It remains to be seen whether Ontario follows B.C.’s lead, but in the meantime, it is unlikely to be much consolation for the partner of Rocco Jr.’s deceased owner. As sad as the story is, the case is probably more of the exception than the rule when it comes to pet custody. In my experience, there doesn’t tend to be much of a contest for the right to care for a deceased person’s pet.
In fact, for most testators, the real challenge is finding someone who is willing to take on their furry friend after they are gone – especially if the animal is older or has a history of bad health.
That’s why I suggest clients allocate some money in the estate to go with the pet for its future living and medical expenses. Cash may also need to be set aside for the interim stage between the testator’s passing and the executor’s appointment as trustee – a period that can last for months if probate is required, and during which the executor will have no way to access funds from the estate.
As well as your planned caregiver, it’s also important to discuss your intentions with your executor, to make sure they’re on board. Technically speaking, instructions for the care of pets are typically “precatory,” which means they express a testator’s wishes and crucially, are not binding on the estate’s executors or trustees.
And if the deceased’s wishes can’t be met, then the executor themselves may need to take over responsibility or possibly have the animal euthanized if nobody can be found to care for it.
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