They Shoot Horses, Don't They?

A couple of days ago a wrote a post here about estate planning for your pets. Today I am going to write about an estate plan--of sorts--for horses. But this is not an estate plan that I would ever recommend.

Mr. Clive Wishart of Tabusintac, New Brunswick died on May 31, 1991. He had made a Will fourteen months earlier, which provided:

I DIRECT AND DECLARE that my Executors have my horses shot by the Royal Canadian Mounted Police and then buried.

The Royal Canadian Mounted Police were not keen on the idea. They would not shoot Mr. Wishart’s four horses, Barney, Bill, Jack and King, unless the court said they had to.

Mr. Wishart’s executors, whose responsibility it was to carry out the will, were not overly enthusiastic about this provision either. They asked the court what to do.

The judge who heard the case of Re Wishart Estate (1992), 46 E.T.R. 311, Justice Riordon of the New Brunswick Court of Queen’s Bench, did not relish the idea of anyone shooting the horses either. Justice Riordon, quoting from an excerpt of the 1970 edition of Encyclopaedia Britannica, said “John Trotwood Moore, in a tribute to the horse wrote: ‘Wherever man has left his footprint in the long ascent from barbarism to civilization we will find the hoofprint of the horse beside it.’”

Whatever the Justice Riordon’s sentiments might be, the court had to decide the case according to the law. The horses were Clive Wishart’s property. One may legally have one’s animals killed provided it is done humanely. Mr. Wishart had the right to dispose of his horses by his will, and it could be argued that this right included the right to have them put down. If this were correct, it would be the duty of the executors to have Mr. Wishart’s wishes carried out.

According to Justice Riordon, “The decision the court has a responsibility to make cannot be based on sentiment or public opinion but must be based on legal principles in accordance with the law of the land.”

In deciding this case the Justice Riordon looked beyond the words of the will at Mr. Wishart’s underlying motivations and intentions. Clive Wishart was not a cruel man. On the contrary, the evidence was that he loved his horses. One witness said that his “horses were treated royally.” He was concerned about the welfare of his horses after his death, and he feared that they might be abused.

Riordon J. held that Mr. Wishart’s true intentions that the horses not be abused could be upheld without having the horses killed. The New Brunswick Society for the Prevention of Cruelty found people who were interested in taking care of the horses, and the Society was willing to provide supervision to make sure that the horses would be properly looked after. Justice Riordon ordered that the horses’ lives be spared.

But what if Clive Wishart had not been concerned about the horses’ welfare? What if he had put this provision in his will that his horses were to be shot capriciously? Would the court have then held that the executors had to carry out this provision of the will?

Justice Riordon held that this clause was against public policy, and the court would not enforce it. There are restrictions on what a person can have done by will, if carrying out the terms of the will is harmful to the community. According to the Justice Riordon,

In my opinion, the destruction of four healthy animals for no useful purpose should not be upheld and should not be approved. To destroy the horses would benefit no one and would be a waste of resources and estate assets even if carried out humanely. It is my conclusion that to destroy Barney, Bill, Jack and King as directed in the will at this time and in present circumstances would be contrary to public policy.