By B Stead
Pets are family – arranging care for them when their carer dies
Cats, dogs and other pets are really family. So making arrangements for their welfare when their owner dies is worth doing to help relieve others of difficult decision making at a stressful time.
While the matter can be discussed and arranged informally among family or friends, this approach may not be for everyone. Alternatively a will is a useful and practical way to leave instructions for what you would like done with your much loved pets.
Making provision for pets in a will
A will is the legal document in which you express what is to happen to your property and things owned in your name for when you die. A will give some flexibility in what it contains and can be used to make provision for pets or companion animals.
How arrangements are expressed can be done in various ways, the general approaches are listed below. However everyone’s personal circumstances, needs and intentions are different, so after giving thought to what you want, it is recommended to consult a solicitor, so they may tailor a will to your situation. More information is available from the Law Society of New South Wales’ Young Lawyers Animal Law Committee’s publication: What about me? Your pets & your will.”
What can you do through a will for your pets?
- Specify who you would like to look after your pets (if they survive you). Of course it is a good idea to discuss the matter with whoever you wish to trust your pets with as to whether they would be happy to do so. Consider and provide an alternative in case they are unable to.
- If this is not going to be possible, that is there are no family, friends or neighbours to step in, investigate alternatives such as local pet shelters and the like. List in order of preference up to three (so there are alternatives) together with any other wishes for your pets and leave this with your will. This way there will be some sort of plan in place for your executors and the pet won’t be left stranded.
- Make a gift of money by will, or other financial arrangements so as to pay for your pets’ care and their maintenance, depending on your circumstances.
- Establish a special fund or a trust by will for the care and maintenance of pets.
When making a gift in a will – remember you can’t give what you don’t own
This might seem obvious but it is easy to overlook that you can only deal with assets you own personally in your own name by will. Property owned by a company or through a trust structure cannot be disposed of by will.
Case example – making a gift in a will with cat care as a condition
In one case a willmaker made provision in her will for her two beloved cats. She gave a right of residence in her residential property to a friend, on condition the friend agree to look after the cats for 15 years, or until the last one died. If that friend did not agree when the time came, two other names of friends were nominated.
At the end of the period or when the last cat died, the willmaker then made a gift of the property to the friend who had been willing to carry out the condition. Substitute arrangements were made, with the gift of the residence ultimately going to an animal -related charity.
The terms of the will provided funding arrangements for the cats’ care. This involved the establishment of a fund from which a fixed amount was to be paid weekly for the cats’ maintenance needs, as well as to meet the costs of the outgoings and repairs to the residential property. It seemed her wish was for her cats to stay in her/their residential home and continue to be cared for there.
Accordingly in her will the willmaker gave what she thought was ‘my property’. However it was not until after she died, that it came to light her residence was not owned in her individual name, but by a company, of which she was the sole director/shareholder. The company held the residential property as trustee of a discretionary trust, established at the time of purchase, a long time ago. Understandably it is easy to think of such an asset as being ‘mine’.
The problem this generated was that as the willmaker was not the registered proprietor of the residence, she was not able to give it away in her will. To complicate things further a legal technical problem with the trust deed emerged, which, taken together raised complex technical arguments.
To resolve the issues the executors sought judicial advice from the court. Sometimes what might seem to be someone’s obvious intention, on closer examination, can involve raising difficult questions of law beyond the realm of wills and estates law. In this case reference was made to trusts law, stamp duties, corporations and family law cases.
What is a “right of residence”?
In the general law, a “right of residence” is a personal right, given to a particular person for them to use. They cannot pass it on to anyone else, nor lease or sell the residence.
To seek assistance for your personal circumstances contact a solicitor offering services in wills and estates, the Public Trustee in your state or territory, or trustee companies offering these services. For solicitors contact your state’s Law Society listed here and for Public Trustees go here.
Public Trustee v Smith  NSWSC 397
28 August 2014
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