Pets – making provision for their care by will

Pets are family – make a plan for their care

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

Who will look after me?

Pets and companion animals are important parts of our lives and family. Legally a pet is regarded as property, not a ‘person’ (although we might think of them that way!), belonging to their owner.  Being property means that a pet cannot hold title to property and so cannot take a direct gift of money as a beneficiary under a will. 

As owners, it is important to consider options for their care should you become unable to continue and for when you die.

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.

Informal arrangements for making provision

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.  And worth putting together

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 your pets should you become incapacitated

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 money to be spent on your pet’s care and the extent of any veterinary attention. Compiling some information about your pet to be kept with this would be assist your attorney, download a guide to making a pet profile below.    

What if you don’t make any arrangements for pet care?

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.  It may cause difficulties if they all want the pet.  

Make provision for your pets for after you die in your will

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 mentioned, 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.  An outline of these options follows.  

What can you do through a will for your pets?

  • Make a gift of your pet to a trusted family member or friend in your will, once you have checked that they would be happy to take the pet on.  Provide an alternative in case they are unable to do it when the time comes, or if they pre-decease you. 
  • In addition give a sum of money (legacy) in your will to the proposed recipient to cover the pet’s reasonable costs based on your experience. 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. 
  • Alternatively you could gift 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, making 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. 
  • 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 below 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 if this makes it difficult for others to care for them, whether it might be preferable they be separated. 

Testamentary trust for the pet

You can establish a special fund in a trust arrangement by will 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. 

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.

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, see page 23.  

Long living 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.  

Pet Profile – compile some information on your pet for peace of mind

As you know your pet the best, it can be helpful (and peace of mind for you) to be able to provide anyone having to care for it in an emergency, if they have some  information prepared by you about your pet to guide them.  It can also be helpful to your executors and personal representatives for after you die, if they don’t know you or your pet, and if re-homing is being considered.

A list of things to consider have been compiled in this Pet profile form, free to download, click here or the link below, and tailor it to your needs, (Word, DOCX, 20KB).  After completion print a copy – and tell your executor (personal representative), family or trusted friend.

Download a Pet Profile form – click here

If it is expected your pet will be re-homed, some pet rescue organisations also provide tips on compiling information about your pet, especially if you are considering the option of having your pet adopted out or re-homed after you die, or if for some reason you become unable to continue looking after it. See How to write a great pet profile by PetRescue.  PetRescue is an animal welfare charity operating Australia-wide: https://www.petrescue.com.au/.

Providing for cat care by will –

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.  It came before the court because of administrative problems following the discovery by the executors that the deceased was not the registered proprietor of what she described as “my property” where the 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.

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.  

Balancing the needs of family and others eligible for provision with beloved pets

There have been well-publicised cases internationally where wealthy people have bestowed large sums for the care of their pets.  In one instance in the US this was at the exclusion of two grandchildren who were disinherited – they contested the will and won.  The judge substantially reduced the trust fund for the pet of some 12 million dollars to 2 million.  The point here is to be mindful of family members and others “eligible” to make a claim on your estate under the family provision legislation when making your will. 

In New South Wales an elderly deceased by his will left his entire estate to to his second wife and in default to the RSPCA in NSW.  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 the family provision legislation being eligible to do so.  Their claim was successful and the court reduced the amount given to the RSPCA by 60%.3   Leaving everything to an animal charity is not a good idea where the willmaker has children, family and others who may be eligible to make a claim. 

Seek legal advice for assistance when making provision for pets in your will.   it is important that the wording reflects your intentions and will be workable for your executors and legal personal representatives.  The costs of legal advice at the time making a will vastly outweigh the court costs for a family provision claim. 


 

 

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
3.  Marshall & Ors v Redford [2001] NSWSC 763

B Stead
BHS Legal
28 August 2014, updated 20 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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