October 1, 2015 By: Erin Lepine
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When we pass, we leave behind a variety of items in our estate that need to be distributed or disposed of in some way. Many of these possessions we automatically consider when thinking about our estate planning, such as the family heirlooms, special pieces of jewellery, and of course, our savings. However, there is a growing number of things that today's society is known to possess that might be deserving of special consideration when determining what will happen once it forms part of your estate. Some of these possessions have always been around, but have gained a more specialized status in our lives, such as our pets; others are items that have specific legal considerations.

Pets

Any pet owner will agree that our pets are one of our most prized possessions. Whether a dog, a cat, a parrot, or any other living creature to whom you offer your love and affection, pets hold a greater importance to their owners than most other possessions. To most of us, pets are considered a member of the family.

Notwithstanding a pet's special status in the eyes of their owner, Canadian law has determined pets are physical property; pets have been afforded legal treatment akin to all other items in our homes. For example, much litigation has arisen over pets where a divorcing couples' separation agreement failed to specifically address who will keep the dog or cat. In these situations, Canadian courts have consistently held that the pet fell under the general contents clause of the agreement – the same clause that would deal with the kitchen table, television, and general household items.

With that in mind, it is not surprising that more and more people are beginning to make special provisions for their beloved pets in their Will, thus insuring pets are given the treatment they deserve after the death of their owners.

When making a bequest related to a pet's on-going care, it is important to consider who in your life could care for the pet after your passing and how that person will pay for the care the pet requires such as food, shelter, and veterinarian expenses.

Sometimes the answer will be east and your Will could include a simple clause indicating any pets owned at the time of death will go to a chosen friend or family member. Upon your passing, the specified individual could then retrieve the pet and carry on with the pet's care. If you do choose to leave a pet to a specific individual, you may also consider giving a conditional cash gift to that person through your Will, to help contribute toward the pet's continued care. Making it a conditional gift ensures that if there are no pets for that person to receive at the time of death, or if that person does not take the pet into his or her care, then they will also not receive the cash gift intended to compensate for the expenses associated with the pet.

If you do not have a friend or family member to whom you can leave your pets, then consider whether there is an animal shelter you trust to provide interim care to your pet and take special care in finding a suitable "forever home" when you are gone. If there is an animal shelter you trust, then a specific provision can be put into your Will to make these wishes clear for your estate trustee. Depending on the shelter, it may also be possible for you to pre-register your pet with that shelter so they have detailed information about the pet's personality, special needs, and any other information that could help in finding a proper home for your beloved animal after your passing.

Firearms

With the constant media buzz in Canada about the long form fun registry, it is common knowledge that the ownership of firearms in Canada comes with special licensing and registration requirements. These specialized laws extend to the distribution of firearms as a result of the owner's death.

Generally, Canadian law requires that an individual inheriting a firearm must be at least 18 years old and have a valid "Possession and Acquisition Licence" (PAL). If the intended beneficiary does not have a PAL at the time of death, he or she must obtain with the appropriate privileges for the specific type of firearm they will be receiving, prior to the firearms being transferred from the estate.

The challenge exists, however, that the estate trustee will automatically assume possession of any firearms immediately upon the death of the owner. This could mean an estate trustee who does not have a PAL with proper privileges may find themselves in possession of firearms without the appropriate licence or basic knowledge as to how the Canadian firearm regulations apply. Fortunately, a special exemption exists that allows estate trustees to possess the firearms for a reasonable period of time in order to effect the administration of the estate without the requisite licence.

If a gun owner does not have anyone who could inherit their firearms, or if the intended beneficiary is ineligible or does not wish to inherit the firearms, then the estate trustee may choose to sell or donate the firearms to any individual, business or museum holding a proper PAL. The estate trustee could also arrange for the firearms to be permanently disabled, thus exempting them from treatment under the Firearms Act. Or the estate trustee could contact his or her local police station or firearms officer to arrange for the proper disposal of the firearms.

Before touching, transporting, or moving any firearms, an estate trustee should always contact the RCMP Canadian Firearms Program to receive necessary information and assistance on how to deal with the firearms, licences and registrations forming part of an estate.

Genetic Material

Artificial reproductive technologies have come a long way since the first "test tube" babies were born in the late 1970s. Now, individuals are able to keep their frozen eggs, sperm, and fertilized embryos in cryogenic storage for future use, and at a considerably lower cost.

Canadian law prohibits the use of an individual's genetic material, such as frozen eggs, sperm or embryos, after the death of the person providing the genetic material, unless specific written consent has been provided during that person's lifetime. Arguably, this specific written consent could be included as a clause in the Will of an individual who has frozen genetic materials in storage.

Canadian courts have held that genetic materials such as frozen eggs, sperm, and embryos, qualify as "property" of the registered owners. Whether or not these genetic materials classify as property to be given away under the terms of an individual's Will remains unclear, and to the knowledge of this writer, untested.

Typically, any genetic materials being cryogenically stored by a fertility clinic in Canada are accompanied by consent forms and contracts signed by the parties at the time the materials were retrieved for storage. These forms usually include specific directions on what will happen to the genetic material upon death – whether or not they will be destroyed, donated for research, or perhaps pass onto an intended beneficiary (intuitively being the spouse of the deceased party).

Whether or not the designations made at the fertility clinic can be overridden by an express provision in a Will is also unclear. However, if the designation is requires as a part of a donor agreement (a legally binding contract signed between the intended parent(s) and a known third party who is donating genetic materials which sets out the rights and obligations related to the genetic materials and any children born as a result of the donation) then it is possible the existing contract could trump any future designations made under a Will. Barring a specific contract to the contrary, however, it seems logical that a beneficiary designation signed through a fertility clinic agreement or consent related to genetic material being cryogenically stored by that clinic, would operate in a manner similar to a life insurance designation, such that a specific clause changing the designation in a Will would be valid and the property would continue to pass outside of the estate. 

If you have any unusual property that will require special treatment or consideration upon your death, please talk to a Wills and estate lawyer to determine whether or not special provisions should be made and what steps can be taken prior to your death to ease the administration for your estate trustee.

Erin Lepine is an associate with the Ottawa Law firm of Nelligan O'Brien Payne LLP (www.nelligan.ca) and a member of the Wills and Estates and Family Law Practice Groups.

[This article was originally published in the October 2015 edition of Fifty-Five Plus Magazine.]

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.