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.
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, as a Plan C, 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 charity as a further 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.
⚖️ If you already have a Testamentary Trust in your Will, you can expand it's scope to include provision for the care and maintenance of your Pet/s during their lifetime.
⚖️ If you don't already have a Testamentary Trust in your Will, the ability to provide for the lifetime care of your Pet/s is another reason to consider adding one.
⚖️ Where a Testamentary Trust is included in your Will solely for the purpose of providing for the lifetime care of your Pet/s it is called a Testamentary Pet Trust.
⚖️ Under a Testamentary Pet Trust the trustee holds the money for the benefit of the named Pet/s.
⚖️ When the Pet/s die, the Testamentary Pet Trust is wound up and distributed according to the directions made in the Will, which might be to an animal charity or elsewhere.
⚖️ While using a Testamentary Trust 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.
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.
⚖️ 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.
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!
For a more detailed discussion please refer to our blog article “Care Planning for your Furry, Fluffy or Fine-Feathered Pets" by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
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.