All About Estates

Could a “non-human person” ever be a beneficiary of a will?

Today’s blog comes to you from Student-at-Law, Demetre Vasilounis.

In 2013, the Government of India’s Ministry of Environment and Forests ignited a discussion in the international legal community by deciding to prohibit dolphinariums as well as any enterprise that involves the import or capture of cetacean species (dolphins, whales, porpoises) for the purposes of commercial entertainment. This was notable because the Ministry suggested that dolphins in particular should be seen as “non-human persons” as a result of their unusually high intelligence as compared to other animals, and as such, should have their own specific rights separate from other animals.

India’s declaration marked the first time that a major government incorporated the idea of a “non-human person” status into its policy documentation. Do note that its government did not actually codify the term into statute; instead, it used the term to supplement its reasoning for the prohibition on dolphinariums. This leads one to ask: what exactly would a “non-human person” status be, and what rights would it entail?

Of course, one could wonder what impact such a status would have from an estates law perspective. While there have been instances of testators leaving considerable sums of money to their pets (as recently as last month, when Karl Lagerfeld left a vast portion of his estate to his cat), pets, in most cases, cannot actually be beneficiaries of a will as they cannot own property (see our blog post on estate planning for pet owners here). The reason for this is that animals do not have the same legal status as humans, and cannot own property.

Although animals do have other legal rights, would a qualifying animal’s status as a “non-human person” give it property rights by virtue of its intelligence? Animals certainly have homes that they maintain and protect (like a beaver’s dam or an eagle’s nest), so it is not so unreasonable to believe that at least some animals have some sort of concept of property.

This principle does not just extend to animals. Ukrainian Law Professor Radutniy Oleksandr Eduardovich cited India’s policy on dolphins in his paper on criminal liability of artificial intelligence (AI). He argued that, as AI’s intelligence could exceed human intelligence, AI systems should have legal status akin to humans. The subject of the legal status of AI is a bit trickier than that of the legal status of animals, as while AI systems are more sophisticated than animals, they are arguably closer to objects than to living things (as a result of their synthetic nature). However, there is little controversy in suggesting that an AI system would definitely understand the concept of property.

While the validity and necessity of a “non-human person” legal status is certainly up for debate, who is to say that an individual, by virtue of their connection to an animal (or perhaps even an AI system), does not view that animal (or system) as a person to whom they would like to distribute a gift? History has shown that humans develop connections to all sorts of beings and objects, and it is natural for a human to feel the desire to bestow gifts to entities with which they have such a connection. That’s the reason why we have estates law in the first place: to protect such gifts. As the law develops, it seems that the question is whether a “non-human person” status will improve estates law, or whether it will needlessly complicate it.

 

 

 

 

About Brittany Sud
Brittany Sud is a member of the Trust, Wills, Estates and Charities Group at Fasken, Toronto office. Brittany is developing a broad estates and trusts practice with a focus on planning and administration matters. As part of her practice, Brittany assists high net worth clients, entrepreneurs and professionals with Wills, powers of attorney, domestic contracts and trusts. She has experience developing and implementing cohesive estate plans that reflect the financial objectives and short and long-term goals of clients, including advising on probate planning, family business succession planning, asset protection strategies and disability planning. Brittany’s estate administration practice includes preparing applications for probate and administering the Canadian estates of non-residents. Outside of the office, Brittany enjoys playing softball and tennis, travelling and cooking. She is a dedicated volunteer of the United Jewish Appeal, Jewish National Fund, One Family Fund and Baycrest Foundation. Community Involvement • Host, Baycrest Foundation - Game Night for Baycrest, 2015 • Chair, Pitch for Israel Softball Tournament, 2014-2016 • Vice-Chair, United Jewish Appeal Young Lawyers Leadership Campaign Canvassing Team, 2016 Memberships and Affiliations • Member, Canadian Bar Association • Member, Ontario Bar Association - Trusts and Estates Law Section • Member, Ontario Bar Association - Young Lawyers’ Division • Student Member, Society of Trusts and Estates Practitioners (STEP) Canada

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