TESTIMONY ON BEHALF OF MSBA
ANIMAL LAW COMMITTEE IN FAVOR OF SB 235
By Kathleen J. Masterton
Senators. My name is Kathleen J. Masterton. Thank you for allowing me the
opportunity to testify today in support of Senate Bill 235, "Estates and
Trusts—Trust Care of Animal." I am an attorney in private practice in
Lutherville, MD, focused on estates and trusts and equine law. I also am a
former Assistant Attorney General who served as counsel to the Md. Orphans
Court Judges and the MD Registers of Wills. I am here today not only in my
capacity as an experienced estates and trusts attorney, but primarily on
behalf of the Animal Law Committee of the MD State Bar Association.
The Animal Law
Committee is a special project of the Maryland Bar Association serving as a
focus for attorneys interested in the law as it impacts animals and the people
involved with them in our society. The Animal Law Committee hopes to educate
legislators, members of the bar, and lay people on legal issues as they
pertain to animals, and influence the drafting of quality legislation to
address animal-related issues such as trusts for the benefit of animals after
their owners' demise. The Animal Law Committee is not an animal rights group,
but rather a forum for attorneys of all viewpoints whose practices may involve
animal-related legal issues.
have seen an evolution in the relationships between people and their animals.
Many people consider their dog, horse, bird or ferret a member of their family
and feel both an obligation and a desire to provide for the animal's welfare
during its entire lifespan. Dogs and cats may live 10-20 years; horses
commonly live for thirty years, and some bird species may live as long as 75
years. Current Maryland law makes the fulfillment of this desire after the
owner's death problematic. In Maryland, animals are considered to be tangible
personal property, no different than a chair or a car.
Personal Representatives who administer estates have a fiduciary duty to
minimize the ongoing costs to an estate. In the absence of adequate planning,
where the estate owns tangible personal property with a high daily maintenance
cost and a relatively low valuation, such as a pleasure horse, the Personal
Representative could conceivably be held to have a duty to eliminate the
maintenance cost from the estate as expeditiously as possible, for example, by
selling the animal at auction for slaughter. This outcome is abhorrent to
many animal owners, who may regard their horse or other animal as their best
friend. But there are few viable alternatives.
Maryland citizens who want to engage in post-mortem planning for an animals'
welfare are largely limited to designating, in a will, a person whom the owner
believes is willing and able to care for the animal after the owner dies, and
to leaving that person a sum of money intended to cover the cost of the
animal's care. There are many problems with this approach: the named
caretaker may be unable or unwilling to care for the animal at the time this
becomes necessary, may be a spendthrift, may be incompatible with the animal
in ways that were not anticipated, or may simply prove untrustworthy.
Essentially, under current law, animal owners and their animals are at the
mercy of fate. As animals are not considered legal persons, current
legislation does not authorize the creation of trusts for their benefit, and
it is unlikely that any such trust, if created, would be enforced by the
courts of this state.
The Uniform Probate Code and the Uniform Trust Code are model
statutes promulgated by the National Conference of Commissioners on Uniform
State Laws, a group of eminent attorneys who focus on designing excellent laws
after much study of the problem at hand. Both uniform codes provide for
so-called "pet trusts." While at least 26 states have adopted some form of
legislation allowing for the establishment of trusts for the benefit of
animals, usually based on one of the uniform codes, Maryland has not yet done
so. It is time to correct this oversight by adopting SB 235.
Trusts for the
care of animals are a viable solution to the responsible pet owner's dilemma.
The experiences of other states who have adopted animal trust legislation show
that many of the common objections to such trusts are readily overcome in the
model law. SB 235 is similar to Section 2-907 of the Uniform Probate Code and
Section 408 of the Uniform Trust Code. It provides for the creation of trusts
for the care of one or more animals alive during the life of the trust settlor
and the termination of such trusts at the death of the last survivor of the
so-designated animals; this eliminates the concern that such trusts could
continue indefinitely. SB 235 also specifically provides that the common law
"rule against perpetuities" does not apply to bar the validity of a so-called
SB 235 authorizes the enforcement of the trust by a person
appointed under the terms of the trust or, if no such person is appointed,
then by a person appointed by the court. This addresses the primary practical
problem with establishing an enforceable trust where no human beneficiary
exists with standing to enforce the terms against the trustee. Such states as
Florida, New Jersey, New York, the District of Columbia, and many others have
adopted this approach with success.
SB 235 provides
that, unless a court holds otherwise, the property of the trust only may be
applied to the intended use of the trust. This addresses concerns that trust
proceeds could be used for impermissible purposes, and the above-referenced
enforcement provisions ensure that this clause has teeth. Finally, SB 235
provides that if any funds are not required for the intended use—for example,
if funds are leftover after the animal in question passes away—then the funds
will be distributed to the successors in interest of the deceased settlor.
This, of course, satisfies the natural desire that a person's assets, not
otherwise disposed of, pass to the natural objects of his or her bounty--the
heirs at law.
In short, the MD State Bar Association Animal Law Committee feels
that SB 235 is a well crafted piece of legislation embodying language that
that has withstood the test of time in other states, that will address a
problem keenly felt by many Marylanders engaged in estate planning, and that
will result in the overall improvement and modernization of the estate and
trust laws in Maryland. We urge that it be favorably be reported out by this
Committee and enacted as the law of Maryland.
Thank you for
your courtesy in listening to my remarks today.