## Facts

- Howard H. Brand died domiciled in Essex Junction, Vermont, leaving testamentary documents admitted to probate in Chittenden County Probate Court.
- Brand’s will, as modified by a later codicil, directed that animals he owned at death—including horses and cattle—were to be destroyed.
- At the time of the probate proceedings, Brand was believed to own four horses and one mule; the animals were not alleged to be sick or dangerous.
- Because Vermont courts had not previously addressed whether a testator could direct the destruction of healthy animals through a will, the probate court held an evidentiary hearing on the enforceability of the directive.
- Two attorneys who had consulted with Brand regarding his estate plan testified that Brand was of sound mind when he executed the will and codicil.
- One attorney testified that Brand’s stated reason for ordering destruction was to prevent his animals from being treated inhumanely after his death.
- Animal-welfare advocates opposed enforcement. The court received amicus submissions from multiple animal-rights activists and organizations arguing that enforcement would violate public policy.
- A group organized as “The Coalition to Save Brand’s Horses” sought to participate in the proceeding and requested relief to prevent the executor from carrying out the destruction directive.
- The court considered both whether the destruction clause could be enforced and, if not, how to honor Brand’s lawful objectives regarding the animals.

## Issues

1. Whether a testamentary provision directing the destruction of a decedent’s healthy animals is enforceable, or void as contrary to public policy.
2. If the destruction directive is unenforceable, what remedy or administration method (including use of cy pres principles) may be used to carry out the testator’s lawful intent regarding the animals’ post-death treatment.
3. What role, if any, animal-welfare advocates and amici may have in the probate court’s consideration of the clause’s validity and appropriate relief.

## Decision

- The probate court treated the enforceability of a directive to destroy healthy animals as a question of first impression in Vermont.
- The court held that the codicil clause mandating destruction of Brand’s animals was void as contrary to public policy and therefore could not be carried out by the executor.
- The court did not invalidate the testamentary documents based on lack of capacity; it accepted the evidence that Brand was of sound mind and that the directive reflected his intent.
- After rejecting the unlawful means (killing healthy animals), the court considered how to effectuate Brand’s general, lawful objective—avoiding future mistreatment—through a different disposition.
- Applying cy pres principles, the court indicated that the estate’s administration should proceed in a way that places the animals with a suitable caretaker or arrangement capable of providing care comparable to what Brand provided during his lifetime, and contemplated further proceedings to determine the best placement.

## Legal Principles

- Testamentary freedom is subject to limits; a court may refuse to enforce a will provision that violates public policy.
- A directive to destroy healthy animals solely because a will commands it may be treated as contrary to public policy and thus void, even if the testator’s motive is framed as protective.
- A finding that a testator had capacity and expressed a clear intent does not require enforcement of an unlawful directive; validity of execution and enforceability are separate questions.
- When a specific testamentary instruction is illegal or void, a court may sever that instruction and use equitable doctrines, including cy pres, to approximate the testator’s general lawful purpose through a permissible disposition.
- Probate courts may consider input from interested participants and amici where it assists in determining public-policy limits and an appropriate remedy for disposition of living animals affected by the estate plan.

## Conclusion

In administering Howard H. Brand’s estate, the Chittenden County Probate Court held that the codicil provision requiring destruction of Brand’s healthy animals was void on public-policy grounds, and it turned to cy pres principles to redirect the estate’s handling of the animals toward a lawful outcome focused on securing humane care rather than carrying out the destruction order.


In re Estate of Howard H. Brand, H.C. 5100/94 et al., No. 28473 (1999)