How do I best provide for the long-term care of my Pet/s in my Will?

Long-term Care for your Pet/s …

✅ If you pre-decease your Pet/s …

Formal Arrangements

What do you need to understand in terms of your Will?

❌ You cannot name your Pet/s as direct beneficiaries in your Will.

❌ For clarity, you cannot include statements in you Will such as “I give $X to my cat Toby".

❌ Legally a pet is regarded as your property. That is, as one of your possessions.

❌ Pet/s are not legally recognised as a ‘person’ under the law.

❌ This means they cannot own property, hold a bank account, sue or be sued, or in this case, receive a gift as a beneficiary directly under a Will.

There are different approaches to providing for your Pet/s in your Will

The approach to take will depend on your personal circumstances, what you prefer for your Pet/s, and their needs.  

Some simple + valid options to consider for the long-term care of your Pet/s under your Will are as follows.  

✅ You can make a gift of your Pet/s to a trusted family member, after you have discussed it with them and they have agreed to take on the responsibility.

✅ Provide for an alternative, Plan B, trusted friend or family member, just in case.

✅ In addition, it would be wise to give a sum of money (legacy) in your Will to the actual recipient of your Pet/s to cover your conservative estimate of your Pet/s lifetime reasonable living, maintenance and anticipated healthcare costs based on your experience.

✅ Alternatively you could gift your Pet/s to a registered pet charity, rescue charity or pet shelter such as the RSPCA to be re-homed or adopted by another pet-lover.

✅ Ensure you get the name of the charity or shelter 100% correct, and provide for an alternative as a backup just in case.

✅ If you have more than one Pet, consider whether you want them kept together.

✅ Clearly communicate everything to your Executor/s so they can work quickly to ensure your Pet/s are kept as safe and comfortable as possible at a time which will be difficult for them as well as for all concerned.

Testamentary Pet Trust
[Legal Assistance Highly Recommended]

✅  Alternatively, you can establish a Testamentary Pet Trust for the care and maintenance of your Pet/s during their lifetime.

✅  Under such arrangements the trustee holds the money for the benefit of the named Pet/s.  

✅  When the Pet/s die, the trust is wound up and distributed according to the directions made in the Will, which might be to an animal charity or elsewhere.

✅  While this approach provides increased certainty that your allocated funds will be devoted to the long-term care of your Pet/s, it is also more costly to administer.  

✅  Choice of trustee is important.

✅  Someone trusted to carry out the terms of your trust, preferably independent and experienced, needs to be appointed in the Will as trustee for this purpose.

Some Pets can live up to 100 years or more …

Certain species of animals like turtles, koi fish + birds (e.g., parrots) can live up to 100 years or more.  

❌ In most state and territories of Australia (except South Australia) the life of a Trust is a maximum 80 years;

✅ if your Pet/s could outlive the useful life of the Testamentary Pet Trust, it becomes crucial that you seek legal advice in order to create a specific plan for what is to occur if your Pet/s outlive the Trust established for its long-term care.

Don't give your Pets more than they need!

❌ Any gift well in excess of your Pet/s actual needs, opens the door to the possibility that your Will might be challenged by eligible beneficiaries.

NSW Case example[1]: Left everything to the RSPCA + had children who were eligible to make a family provision claim

No Pets were involved.

The Will disinherited eligible beneficiaries, instead giving everything to the RSPCA.

Mr. Simpson left his entire estate via his Will to his second wife, and in the alternative should she pre-decease him, to the RSPCA.  

Nothing was left to his three children from his first marriage.

As it transpired, his second wife pre-deceased him, so everything went to the RSPCA.  

The estate after sales of all estate property amounted to a total of $397,453.58 in cash.

The three children from Mr. Simpson's first marriage successfully contested the Will under family provision legislation and were awarded 40% of the estate after legal costs.

❌ Leaving everything to an animal charity (or any other charity) is not wise where there are children, family and others who may be eligible to make a family provision claim on your estate.

❌ The wasted legal costs paid out of the estates in this case were circa $50,000.

What if you make no special arrangements for your Pet/s?

Your pets are your property so if you make a Will and don’t make any specific arrangements for them, they will form part of your residuary estate.

Whoever you have designated to inherit the residue of your estate will then be entitled to take ownership of your Pet/s.  

If you have not spoken to your residuary beneficiaries, it may be unclear which beneficiary is to take care of which Pet/s.

❌ It is not difficult to foresee the potential for further disputes arising!

Companion Animal Law Guide: 2nd Edition

➲ Compiled by the Young Lawyers, Animal Law Committee of the Law Society of NSW

Hard copies can be found in the NSW State + Local Libraries or you can view/download the online guide via the Resource Link provided at the following State Library of NSW webpage: Companion Animal Law Guide New South Wales.  

Footnotes:
[1]. Marshall & Ors v Redford [2001] NSWSC 763

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.