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Brother threatening to sue for custody of mother's dog due to will discrepancy

Flagstaff, AZ |

The will names me as the inheritor of the dog so long as I provide "a caring home, food and any medical needs" for the dog. I pay for all food and necessities for the dog, but can't keep the dog with me. My father takes care of the dog as I instruct. My brother claims this violates the will and, as next in line for the dog, is threatening to sue for the dog. Does he have a case?

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Attorney answers 3


Maybe, maybe not. It is arguable that "a caring home" means YOUR home, or it could mean ANY caring home (and presumably that includes your father).

Do you really want to fight about this? Why not just let your brother have the dog? If he does sue you (and he certainly can) it is going to be expensive and time consuming. Is this what your mom would have wanted?

If we do not have a signed fee agreement I am not your attorney and this is not legal advice.


Whether or not your brother has a good case will depend upon the specific language of the will. Your brother could make the argument that the intent of the will was for you to physically keep the dog. However, because the author of the will is no longer available to testify as to their intent, the court will likely only consider the actual language of the will. If so, you have a defense to your brother’s claim by providing a "caring home" for the dog with your father.

Also, from what you have stated it appears that there is some sort of contingency clause that would presumably give the dog to another person if you are not caring for it as directed by the will. I recommend you contact a local attorney to review the will and the specific clause regarding the dog. If you do not meet the requirements under the contingency clause and the will states that the dog would be given to a person other than your brother, then he would not be given the dog even if it were taken from you.

I know that one can become very attached to one’s pet but you may want to consider how much money you are willing to spend on the animal before you fight any action in court. Litigation can become very costly and often exceed the actual value of the item, or in this case animal, that is the subject of the suit. Be prepared to spend a minimum of $1500.00 to defend any action regarding this issue. Depending on the amount of time and the hourly rate of your attorney the cost may be three (3) to four (4) that amount.

My guess is that there are issues not related to the care of the animal that are creating tension within your family. It may be cheaper (and better for all parties) to resolve the family issues first which may ultimately resolve the legal matters, negating the need for litigation.

Best of Luck.

The legal information provided is for informational purposes only and should not be construed to be formal legal advice nor the formation of a lawyer or attorney client relationship. Your receipt of the information on this website is not intended to create, and receipt does not constitute, a contract for representation by Fetters Law Firm, PLLC. Ryan F. Fetters is licensed to practice law only in the States of Maine, Tennessee & West Virgina.


Stories like this never cease to amaze me, and I'd feel bad for chuckling a bit at the idea of a lawsuit over a dog if I didn't think you'd laughed at how ridiculous that proposition sounds as well. Put yourself in the shoes of the judge that this end up in front of, and ask yourself how quickly you'd bury your face in your hands.

My colleagues have hit the nail on the head by directing you to the terms of the Will. Based on the little information that you've provided, it sounds fairly easy enough to argue that the gift might be contingent, or that some sort of trust relationship was created. Since you've quoted the "caring home" language, I'll assume that's precisely the extent of the language used. If it is, and if you were my client, I'd tell your brother to jump in a lake.

Here's a universal truth: You can't keep people from suing. The deck may be stacked against them in every way, and it will never be enough to keep them from chasing down the issue "on principle." At some point, your brother has probably told you that it "isn't about the dog, but about what Mom wanted."

For my two cents, I think you've got an easily-defensible position. As others have pointed out, only you can decide how much of that "principle" you're willing to invest in. Aggravating as it might be, your brother could invoke a legal process that hurts both sides, and you'll need to decide how badly you want to pay in order to defend your choices. It's not a nice spot to be in, and I wish you the best of luck. Anybody ask the dog what he or she thinks about all of this?

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.