Opinion: Last will or not: No dog should be killed to be buried with its owner

An Indiana woman who died in her home in late November left behind a will and her beloved 9-year old male German Shepherd named Bela. Connie Ley’s death is sad, but what’s mortifying was her will — it stipulates that her dog be euthanized if a specific friend or animal sanctuary doesn’t take the pet. Animal lovers have taken to social media to voice their outrage, and the case has made news far beyond the boundaries of Ley’s home near the small town of Aurora. But the will, her lawyer has said, is perfectly legal.

In this case, the friend that Ley picked doesn’t want the dog. (OK, note to pet owners everywhere: If you’re going to put someone in your will as caretaker of your animal, check with the person first. I’m named in a will as the potential caretaker of two cats, but their humans told me about it.) Ley also named Best Friends Animal Society — the national animal welfare group, which runs a large no-kill sanctuary in Utah — as a place where Bela can go, but she put aside no money to move him there, nor had she contacted Best Friends ahead of time. So the dreaded third option is to kill and cremate Bela and commingle his ashes with his owner’s.

For the moment, Bela is being held safely at a local nonprofit Dearborn County, Ind., shelter, Partners for Animal Welfare Society (PAWS). The shelter is simply housing him until the legal issues regarding his fate are worked out. However, the shelter has stated it will not euthanize the dog under any circumstances.

Shocking as this incident is, there are plenty of examples of wills like this that force us to struggle with the disconnect between the increasingly accepted sentiment that pets are members of our family and the actual law — they are our property. And because they are property, people have a right to dispose of them as they see fit. Ironically, it is that very disconnect that sometimes makes people write out these stunning directives in their wills.

UCLA law professor Taimie Bryant, an expert on animals and law, has written about this. Since animals are property, owners vary dramatically in how they treat their animals, so “owners confronting their own deaths have good reason to be anxious or pessimistic about the future prospects for their animals,� Bryant wrote in a 2008 article in the Rutgers Law Journal, “Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals as Property, and the Presumed Primacy of Humans.� Owners sometimes act on that anxiety by having their pets ordered killed, says Bryant.

In the past, some of these directives to have pets put down have been invalidated by trial courts. In the 1960s, a court invalidated a Pennsylvania woman’s instruction in her will that her two dogs be killed. The judge ruled that it was cruel and a violation of public policy to kill the dogs — and that there were caretakers who would take good care of the dog, something the court decided the deceased woman probably would have wanted.

Perhaps the most famous case in California involved a San Francisco woman who committed suicide in 1979 and left a will ordering her mixed-breed dog, Sido, be put down. In the interim, the dog was in the care of the San Francisco SPCA. When the executor of the estate went to court to force the local SPCA to put the dog down, its director, Richard Avanzino, fought hard and won at two levels. The California Legislature passed in 1980 a law specifically overturning the portion of the woman’s will that ordered the euthanasia of the dog, and Gov. Jerry Brown signed it into law. Meanwhile, the trial court judge found the will to be a violation of public policy (as in Pennsylvania), and he also ruled that disposal of property did not extend to killing a living creature. Interestingly, the case triggered the start of the no-kill movement in shelters in San Francisco, which Avanzino was a prime force behind. The dog, by the way, lived out the rest of her days with Avanzino.

But UCLA’s Bryant says — and I couldn’t agree more — that the big problem is “how to erode the property status of animals.� One way might be to have any directive to kill an animal in a will automatically put on hold while the animal is offered for adoption over a set period of time. That would seem to be in the interest of public policy.

In the case of Bela, I’m hoping that Best Friends can either take him -- as Ley’s will allows -- or be permitted by the courts to arrange for his adoption outside the sanctuary.

But no owner should literally love a pet to death rather than leave the pet to an uncertain future.

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