Skepticlawyer

Trust lawyers are taught every trust must have an “object”: that is, someone who benefits from the trust. In some limited circumstances, the object may be a purpose rather than a person (generally charitable, but in rare circumstances, non-charitable).

It seems, in many US States at least, that you no longer have to be human to be a beneficiary of a trust. This issue was brought into sharp relief by the case of Leona Helmsley, a millionaire who created a US$12M testamentary trust for her dog, a Maltese terrier named Trouble. Trouble got more money than any of Helmsley’s four grandchildren (in fact, two of the grandchildren initially received nothing). This case is explored in detail in an article by Jeffery Toobin in The New Yorker (via WSJ Law Blog).

Some of my students and I were wondering last year in Trusts class how one could possibly spend that much money on one little 8 year old dog. We concluded that even if Trouble ate caviar off a new gold plate every night for the rest of her life, she’d still not use up all the money. It seems that Manhattan Surrogate Court judge Renee Roth agreed, ordering that Trouble’s trust fund be reduced from US$12M to US$2M. Helmsley’s will also provided that custody of Trouble should go to Leona’s brother or to her grandson, but in the event, neither wanted custody of the dog. The trustees eventually placed her with Carl Lekic, the general manager of the Helmsley Sandcastle Hotel, who had known the dog since she was a puppy.

Toobin looks at the history of beneficiary rights for animals in the US:

The modern history of legal rights for animals begins with a chimpanzee named Washoe. “He was the first ‘signing chimp,’ the first chimpanzee who learned sign language to communicate with people,” Victoria Bjorklund, the head of the exempt-organizations practice at the New York law firm of Simpson Thacher & Bartlett, said. “There came a time when he was going to be sent off to be used in medical testing, and there was a lot of distress about that possibility.” So Bjorklund and others set up a trust (funded with the proceeds of a book about Washoe), and appointed a guardian to protect him and several other chimps like him. The problem was that New York law said that a guardian could be appointed for a “person with a disability.” Was Washoe a “person” under New York law?

The lawyers at Simpson Thacher argued that “the mental, emotional, sociological, and biological characteristics” of Washoe and the other chimps “warrant their treatment as persons” entitled to representation. The lawyers submitted affidavits from such animal experts as Jane Goodall, who said that “chimpanzees are biochemically closer to humans than they are to any other of the great apes.” According to the brief in the case, the chimps “are capable of rational thought, communication, and other higher cognitive functions,” justifying their treatment as the legal equivalent of minors or disabled humans. In a 1997 decision, the surrogate of Nassau County agreed and appointed a guardian to administer the trust for the benefit of the chimps. “That trust was then respected by the State of Washington, where Washoe lived,” Bjorklund said. “We think it was the first trust ever established for the benefit of specific nonhuman primates.”

Jane Hoffman, a former associate at Simpson Thacher, had brought the Washoe case to the firm. “The idea was to create a right for a nonhuman animal to receive money—to push the envelope on the law, which at that point had only allowed trusts for the benefit of children or disabled adults,” she said. In 1990, Hoffman and a group of other lawyers founded a new committee at the Association of the Bar of the City of New York, on “Legal Issues Pertaining to Animals.” One of the first subjects that the committee’s members took up was the issue of inheritance. In 1996, they helped change the law to make it easier for any animal—especially a pet—to become the beneficiary of a trust. Many people wanted to make provisions for the care of their pets in their wills, but the law allowed no simple mechanism to do so. Frances Carlisle, a New York trusts-and-estates lawyer and a member of the committee, pushed the New York State Legislature to allow the creation of “pet trusts,” which permit individuals to put aside money and instructions for their pets. New York approved the changes, and now thirty-eight states allow for the creation of such trusts. “We decided we didn’t want people to have to leave the disposition of their pets to chance, or a sudden decision, after they died,” Carlisle told me. “We want to give people peace of mind about their animals.”

The legal movement, which largely focussed on pets, was, of course, symbiotically aligned with the broader animal-rights movement, which also grew in the nineteen-nineties. But the theme remained the same—to extend the rights of humans to animals. In a country where most people eat meat, many hunt, and most others give little thought to the legal rights of their pets, the complexities of such a change are considerable. Even pro-animal-rights scholars, like Peter Singer, a professor at Princeton, recognize the difficulties. As Singer said at a recent conference in New York City, “We’re talking about beings as different as chimpanzees, pigs, chickens, fish, oysters, and others, and you must recognize those differences.” For the moment, the goals of the movement are modest, and largely limited to domestic animals.

The article explores some interesting questions. How far should we carry out the wishes of a testator? Are exorbitant trusts for animals appropriate when there are starving human beings out there? What about the testatrix’s human relatives in this case?

Legal status for animals seems to depend upon the level of sentience, and the level to which they are similar and/or useful to us. Regular readers may note that some of the issues raised in the article are similar to those raised in the comments thread on a post by Skepticlawyer a month ago. I’ve also explored the idea in an earlier post of my own that the fact that a dog might be able to obtain better legal representation than a human is problematic. What if Trouble has better legal representation than a prisoner on death row whose life is at stake? (a perfectly possible scenario) Trouble has far more money than most human beings…which makes it easier for her!