Pets – making provision for their care by will

Pets are family – make a plan, arrange care for them for when their owner dies

Pets in wills, cats, dogs, wills, provision for animals, WillsHub

Who will look after me?

Pets or companion animals are part of the family. Making arrangements and documenting a plan for their welfare when you die or become unable to care for them gives you peace of mind.  It is also helpful to others; to family, friends and your executors.   Make sure you let them know.

The matter may be discussed and arranged informally among family or friends, but over time things can change.  A will is a useful and practical way in which to leave instructions for what you would like done with your much loved pets. Some suggestions follow. In addition you can put down your wishes in supporting documents such as a Pet Profile to make it easy for others to learn about your pet. 

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 can be used to make provision for your pets or companion animals.

How arrangements are expressed can be done in various ways, the general approaches are listed below. 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 (should they survive you).  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. 
  • Make provision from your assets for your pets’ care.  Remember that it costs money and time to look after pets so consider leaving some kind of provision for the costs of their care to whoever you plan to ask to take them on.  
  • 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.

 

Making a gift in a will with cat care as a condition

A willmaker made provision in her will for her cats.  She gave a right of residence1 in what she purportedly thought was “my property” to a friend on the condition that the friend agree to look after the cats for 15 years, or until the last one died.  In case the friend was not able to do it when the time came, the willmaker nominated two other friends as substitutes.  At the end of the 15 years or when the last cat died, the property was to be gifted to the cat-carer friend. Substitute arrangements were also made, with the gift of the residence ultimately going to an animal-related charity.

The case is mentioned here for the pet arrangements, but it came before the court because of problems arising from the discovery after death that the willmaker was not the registered proprietor of what she described as “my property”.  Rather it was a corporate trustee of which she was the director/shareholder. Over a long time it is easy to think of such an asset as being ‘mine’, but you cannot dispose of property you don’t own in your will.

Funding arrangements

The terms of the will established a fund for the cats’ care.  From this fund a fixed amount was to be paid weekly for the their needs.  In addition as she wanted her cats to continue living in her home following her death the same fund was to cover maintenance expenses and house repairs.  

 


 

 

1.  A “right of residence” is a personal right bestowed by the property owner on a particular person for them to use the property.  They can’t pass it on to anyone else nor lease or sell it.

2.  Public Trustee v Smith [2008] NSWSC 397

B Stead
BHS Legal
28 August 2014, updated 16 June 2019.

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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