Pets – making provision for their care by will

Pets are like family – make a plan for their care

Pets and companion animals are important parts of our lives and family. Legally a pet is property.  Pets are therefore part of our belongings.  They are not a ‘person’ separate to us (although we might think of them that way!).  This means a pet cannot hold title to property like a person does.  Consequently pets cannot take or be given a direct gift of money as a beneficiary under a will.

In Australia some 69% of households have a pet of some kind, estimated at 28 million pets.  It is important for pet owners to consider options for their pets ongoing care in different circumstances.  For example in case of illness, incapacity and death. 

Expressing your wishes as to what you would like done and documenting a plan for their welfare is helpful to family, friends and your executors.  Make sure you let them know.

Contents:

• Informal arrangements for making provision
• Compile a Pet Profile for peace of mind
• Power of attorney and pet provision in case of incapacity
• Making provision for pets after you die
• What can you do through a will?
• Testamentary trusts for pets
• Long-lived pets

Informal arrangements for making provision for your pets

Discussing pet care and making arrangements informally among family and close, trusted friends can work for some.  However things can change, people can move away to other locations, move to accommodation which is not pet friendly, or for other reasons become unable to take care of your pet. It is important to have a back-up plan. 

Compile a Pet Profile for peace of mind

Since you know your pet the best one of the first things you can do is to document information about your pet’s preferences.  It can be helpful (and peace of mind for you) to have such information on your pet prepared and kept in a suitable place.  In an emergency it can be given to the person caring for your pet as a guide to caring for your pet.   

Assist legal personal representatives

It can also be helpful to your executors and personal representatives after you die.  They may not know you or your pet.  This is important where there is a possibility the pet may need to be re-homed.

A list of things to consider have been compiled into this Pet profile or pet-plan form which is free to download for personal use only by clicking here or the link below, and tailoring it to your needs, (Word, DOCX, 20KB).  After completion print a copy then tell your executor (personal representative), family or trusted friend about it and where you have put it.

Download a Pet Profile or Pet Plan form – click here

If you want more information on writing a pet profile see How to write a great pet profile by Pet Rescue, an animal welfare charity: https://www.petrescue.com.au/.

If it is expected your pet will be re-homed some pet rescue organisations also provide tips on compiling information.  This is helpful if you are considering the option of having your pet adopted out or re-homed after you die.  Or should you become unable to continue looking after it.

Compiling your wishes into a document such as the Pet Profile above is practical and makes it easy for others to learn about your pet’s behaviour, food preferences and the like.  However if you want particular care arrangements for your pet when you die and wish to leave financial provision for that it is preferable to clearly record your intentions in your will.  Some suggestions follow.

Power of attorney and pet provision in case of incapacity

Unforseen events might occur which makes it difficult for you to look after your pet, perhaps temporarily.  An enduring power of attorney  document deals with financial matters.  This document can also be used to record  instructions to your attorney as to any money you would like spent on your pet’s care and the extent of veterinary attention. Compiling some information about your pet like the Pet Profile above to be kept with this would be helpful to your attorney.  

Making provision for pets after you die

A will is the legal document in which you can express what you would like done with the  property you own when you die. As your pets and companion animals are property under the law you can use your will to make provision for their care. But pets can’t inherit directly so avoid making statements like “I give $x to my dog Trixie” for example.

There are different approaches to providing for them, it all depends on your personal circumstances, and what you prefer for your pet and their needs.  Some options to consider follow.

What can you do through a will for your pets?

1.  Provide for your pet to be given to someone you trust

Make a gift of your pet to a trusted family member or friend in your will, ideally someone they know.  Checked that they would be happy to take the pet on first though.  Provide an alternative in case they are unable to do it when the time comes, or if they pre-decease you.

2.  Make provision for their care

In addition give a sum of money (legacy) in your will to the proposed recipient to cover your pet’s reasonable costs.  Estimate the costs from your experience with an allowance for future increases.

You can express your wishes to them on how you want your pet looked after, and what you would like if they become unable to continue caring.  It is possible to establish a trust fund in your will for the purpose of the care and maintenance of your pet.  This requires appointing someone in your will to act as trustee.  See testamentary trusts below, and seek legal advice. A pet-plan for what you want to have done with your beloved pet is a worthwhile exercise to consider and document.

3.  Pet rescue

Alternatively if there is no-one you know you feel comfortable with leaving your pet to, you could consider gifting your pet to a registered pet charity, rescue charity or pet shelter to be re-homed or adopted by another pet-lover.  Investigate the providers in your area then name your preference in your will.  Make sure you use the correct name.  Provide an alternative as a back-up plan. Some have continuing pet care programs where by they take you pet in return for a bequest under the will.

4.  Prepare a pet profile

Most important so as to assist others who don’t know your pet prepare a summary of information or pet profile on your pet.  Include your wishes for who or what is the preferred situation for your pet and leave this with your will. Download a blank pet profile form to get started.

Tell your attorney, personal representatives or executors

Inform your attorney (appointed under a power of attorney), personal representatives or executors (appointed under your will), close family or trusted friend about your plans for your pet so they know in advance.  It makes things a bit easier at an already difficult time.  This way there will be some sort of plan in place for your executors and the pet won’t be left stranded.  If you have more than one pet consider whether you want them kept together.  Or whether this would make it difficult for others to care for them than if they were separated.

Testamentary trusts

You can establish a special fund in a trust arrangement by will called a testamentary trust for the care and maintenance of your pets during their lifetime. Under such arrangements the trustee holds the money for the benefit of the named pet/s.  When the pets die, the fund is wound up and distributed according to the directions made by the willmaker in their will.

While this approach increases the surety of your allocated funds being devoted to pet care, it is also more costly to administer.  Choice of trustee is important – someone trusted to carry out the terms of the trust, experienced and preferably independent needs to be appointed in the will as trustee for this purpose. Also consider what is to be done with any money remaining in the fund after the pet dies, and the fund is wound up, whether to an animal charity or elsewhere. Establishing a testamentary trust is a technical area and specialist legal advice should be sought.

Long-lived pets

A few animals such as turtles, koi fish and some birds (parrots) can live up to 100 years or more.  While not the most common of pets, be mindful that if a trust fund is established to for such long-lived animals, that the trust is established in a jurisdiction where it is legally permissible to run for more than 80 years so as to not infringe the rule against perpetuities.

Willmaking and pet provision

Seek legal advice for assistance when making provision for pets in your will.  It is important that the wording in your will reflects your intentions and will be workable for your executors/legal personal representatives to carry out.

A willmaker made provision in her will for her cats.  She gave a right of residence¹ in what she believed was “my property” to a friend.  She gave it on the condition that her friend agree to look after the cats for 15 years – or until the last one died.  If 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 gifted to the cat-carer friend. Substitute arrangements on that were also made with the residence ultimately going to an animal-related charity.

Funding arrangements

The terms of the will established a fund for the cats’ care from which a fixed amount was to be paid weekly for the their needs and maintenance and veterinary expenses.  The willmaker’s wish was for her cats to continue living in their usual surroundings following her death.  This fund also provided for house repairs.

The problem was that after the willmaker died her executors discovered that she was not the registered proprietor of what she had described in her will as “my property” – where she and her cats lived.  Instead it was a company of which she was the director/shareholder.  The company was the trustee of a discretionary trust established at the time of the property purchase. 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.  Always pays to double check the official records of ownership when will-making. 

Balancing the needs of family and beloved pets

There have been well-publicised cases internationally where wealthy people have bestowed large sums for the care of their pets. 

In one case in the United States pet provision was at the exclusion of two grandchildren.  The grandchildren received nothing.  They felt disinherited, contested the will and won.  The judge substantially reduced the 12 million dollar trust fund for the pet to 2 million. 

The point is to be mindful of family members and others “eligible” to make a claim on your estate under the family provision legislation.

Case example
In New South Wales the deceased had willed his entire estate to his second wife.  If she predeceased him the estate would then go to the RSPCA.  The RSPCA is the Royal Society for the Prevention of Cruelty to Animals.  Nothing was left to his three children from his first marriage. As his second wife had pre-deceased him everything went to the RSPCA.  The value of the estate was almost $400,000. 

The three children contested the will under family provision legislation and succeeded.  The Court reduced the amount given to the RSPCA by 60%.³   Leaving everything to an animal charity is not a good idea where there are children, family and others who may be eligible to make a claim on the estate. The costs of legal advice from a qualified lawyer when making a will vastly outweigh the court costs for a family provision claim. 

What if no arrangements are made?

Your pets are your property.  So if you don’t make any specific arrangements for them in your will they form part of your residuary estate.  Whoever you have designated to inherit the residue of your estate will then be entitled to take your pets.  Mostly these beneficiaries will be family.  But it may cause difficulties if they all want your pet!   

Animal law – a guide compiled by the Law Society of NSW

More information is available from the Law Society of New South Wales: Animal Law Guide New South Wales.  

The legal status of animals

Historically the law divides property into either real property or personal property.   Personal property can be categorised further with one category being absolute property.  Absolute property is about complete ownership and control of a thing without qualification. 

In Australian law domesticated animals are classified as property.  They are the same as our other personal and moveable property (chattels).  This is the case whether the animal is a pet or companion animal or an animal used in agriculture. 

The law considers animals as objects.   Objects like our other possessions over which we have control (subject to Parliamentary made laws, legislation).  In this way they are the subject of  “absolute property”:  Halsbury’s Laws of Australia. 

1.  A “right of residence” is a personal right bestowed by the property owner on someone permitting them to use their property.  They can’t pass it on to anyone else nor lease or sell it.
2. Public Trustee v Smith [2008] NSWSC 397
3.  Marshall & Ors v Redford [2001] NSWSC 763

B Stead
BHS Legal
28 August 2014, updated June 2023