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February 2014 - Kitty Litter

Americans love their pets. While I am immeasurably thankful that since our children reached pre-adulthood, we have not had to provide home and hearth for a number of small furry creatures that, despite differences in sizes and cages, could only fairly be classified as rodents, we also from time to time had cats and dogs. Our longest living cat, Elsinor, who was variously classified as male or female depending on the vet (which led to my lifetime suspicion of the acuity of those in that profession), was with us for eighteen or nineteen years until she/he was picked off by a coyote virtually on our front steps. I still can’t quite get used to coyotes in a beach town, but I digress.

We are now on our fourth Shih Tzu, Tootsie. She lives to be adored, petted, groomed, and go shopping. There is no question that she is female.

That said, we have not been prescient enough to provide for her in our wills. Although admittedly sometimes wavering, we have held to the concept of children before pets. I also vaguely remember something from law school (no comments, please) to the effect that pets could not inherit. I am now forced to rethink our estate planning.

As always, a case in point.

Charlotte Stafford, late of Oxford, New York died in 2010, survived by three nephews.

And her cat. >^..^<

In 2001, she hired Vicky House to assist her with secretarial work, and after she was injured in a fall in 2007, Ms. House moved in to take care of her. Over the years, Ms. Stafford had executed a number of wills in which her three nephews shared equally in her estate, to the exclusion, albeit not specifically, of her cat. However, in 2007 she changed her testamentary distributions which, upon her death, gave birth to litigation from the three formerly favored nephews. The 2007 will “intentionally ma[d]e no provision” for the nephews who, seeing their bounty slip away, filed objections to the probate of the will “contending that the will was the product of House’s undue influence.”

Ms. Stafford gave her home (I hasten to use the word “home” to differentiate it from Ms. House, the person) to the town of Oxford to “be used for historical preservation purposes” and “$100,000 was to be placed in a pet trust for the benefit of her cat” named, and I swear I am not making this up, “Kissie Meouw Stafford.” Ms. House, as “Kissie’s designated caretaker,” got to live in the home rent-free until the trust terminated upon Kissie Meouw’s death, or twenty-one years after Charlotte Stafford’s death, whichever first occurred. I think it would be a safe prediction that, even if Kissie Meouw used all of her nine lives, she would turn out to be the terminating event, so to speak.

The lawyer who drafted the will and his paralegal both testified, in essence, that Ms. Stafford “ran her life the way she wanted to,” and “had a mind of her own,” and felt that her nephews’ “hearts [were] in their pocketbook,” a sentiment that one could argue was borne out by their will contest. She also told her lawyer that her nephews “just assume they are getting everything.”

The probate court granted the petitioner’s (the bank that was the executor) motion for summary judgment, ruling that the nephews had failed to raise sufficient evidence of a triable issue of fact that the decedent had been unduly influenced.

The nephews did what every red-blooded disinherited former beneficiary would do: they appealed. The case ended up in the appellate division of the supreme court in New York, which recently affirmed. I don’t know what Kissie Meouw’s age was at the time of her benefactor’s death, but she had to wait twenty-one cat years for the affirmance. (Court delays can really be a problem if you’re a cat, but I digress.)

According to the New York Law Journal, the decedent’s lawyer said the case was helped by the fact that Ms. House got little benefit from the will other than “the right to change the kitty litter.”

I am hereby serving notice on all Orange County probate judges, present and future: if any of my kids change their name to Tootsie, be very, very suspicious.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

 
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