PETS AND YOUR WILL

Mixed-breed dog sitting, 2 years old , isolated on white

Have you ever considered what will happen to your beloved pets when you die, whether it be your cat or dog or your pet snake .

Pets are legally the property of their owner and therefore can be gifted in your will just like any other asset you own.

Including your pets in the will is a good way to make sure that provision for them.

If there is no reference to a pet in a will then often the pets become part of the rest and residue or residuary estate.

This may not necessarily be the person you want to have the responsibility to look after your loved pets.

There are several ways in which you can ensure your pets are looked after when you die.

Informal arrangements

This is when you can make an arrangement with your children or next door neighbour or some other person to look after your pets.

This should however, be mentioned in your will so everybody knows what you want.

To be safe you should make sure there are clear instructions in your will as to what is going to happen to your pets rather than leaving it to chance.

Formal arrangements

This can be by way of a formal direction and provision in your will, appointing someone to have responsibility for your animals.

This could also involve leaving a lump sum of money for that person to be able to care and maintain the animal.

This might work well, if you trust the person, however there could be risks involved if that person is unable to look after the animal due to unforeseen circumstances, in that situation it may be appropriate to make an alternative or substitute carer.

In my experience, a gift of money to help care for and maintain the animal is always appreciated and ensures that the animal will be properly looked after.

The cost in maintaining an animal can be expensive including food, housing, kennel fees, vet bills and all the accessories that our animals enjoy.

Further, you could maybe make a legacy or gift to an animal welfare charity such as the RSPCA together with a sum of money with directions for the executors to make enquiries for the animal to be re-homed.

A trust arrangement

You could establish a trust within your will for the care and maintenance of your pets.

This involves setting up a trust within your will for the purpose of the care and maintenance of your pet. The trust would hold a sum of money to cover the costs of the animal for its lifetime, directions can be made as to what the money is to be used for and other directions that you think are relevant for the trustee to take into consideration when looking after your pet. However, you should be aware that under Australian law pets are classified as personal property. Some difficulty may arise if there is an issue where enforcement of a trust could have some obstacles as a principal in law says a trust which is not a charitable purpose trust must have a specified human as a beneficiary as there must be someone who can enforce the trust. If the trustee is not prepared to carry out their duties under the trust, the courts will not force the trustee to do so. In some cases it is been held that a trust is really no more than a non-binding direction, that is a request made to the executor of the will to carry out your wishes. It is therefore important to discuss and make arrangements prior to your death to ensure that the person you’re nominated is comfortable with looking after your pet. In my experience this often has been a next door neighbour who knows the pet or your children or close relatives.

Some more things to think about

It is important that the terms you have your will should spell out in as much details as you think is important to provide directions for the care and guidance of the use of any monies left for the care of the pet.

This could include directions that the pet be taken to a vet on a regular basis for check-ups . This could be once a year or more frequently depending on the age and health of the pet.

It is also advisable to leave written details and information about the pet and the health of the animal and your preferred veterinary surgeon.

It’s also important to ensure that the trust is left with sufficient funds that will last for the pets’ lifetime. Care costs need to cover food and any dietary needs, vetinary expenses, remembering that as the pet ages more often than not the costs increase, what is to happen if the pet develops an illness or age of related disorder and may be need to be put down? Other expenses include grooming, toys, travel expenses, boarding costs and other items that are normally associated with looking after a pet. This needs to be thought out as there have been some cases where there has been insufficient funds available to accommodate the pet’s needs

in the wills we have drawn, so some people have been known to establish a trust that provides the carer of the pet with an interest in their home for the life of the pet as well as a fund for the pets’ care and maintenance. By making the carer of the pet the beneficiary of any trust any problems associated with the trust can be eliminated. Obviously this is a big decision to make and you would probably love your pet dearly to go to this extent. In this case the carer might be given a right of residency in the property for a life interest on the condition that they care for the pet. You would need to ensure there was an appropriate person to enforce such a gift. A fund could also be established for the maintenance of the pet with a gift if the funds are not expended in the lifetime of the pet.

Consideration also needs to be given if the person you have appointed to look after your pet suddenly dies or is injured or is unable to do so for any length of time.

Arrangements for the care of pets in such circumstances should also be discussed whilst you’re alive with the person you are nominating to take on this responsibility.

What happens to my pet if
I get divorced

Sometimes, but not often, there are issues in relation to “pet custody”.

This can be very important, especially when there are no children from the relationship and the pets become, or have become, the surrogate children, so to speak.

If the parties can come to some agreement in relation to the pets this is obviously the best way forward, however in my experience, there is no such thing as a good separation especially in the initial stages.

In the event that a decision needs court intervention, the courts can consider the merits of each party’s application in much the same way that a court would consider which party would benefit more from receiving the pet. Note that it’s not all about the pets but about the person in family law.

This can involve the court looking at a number of factors including who is the pet registered to, who cared for the pet and spent time looking after the pet, who fed the pet, who cared and maintained the pet.

It should be remembered that this examination is based purely on an assessment of which party should receive ownership of an item of property in dispute rather than on a concept of what is in the best interests of the pet or who should obtain custody of the pet, as in the case with children.

As pets are considered property under Australian law, the courts cannot enforce a person to do or not to do something in relation to the pet.

In reality, under Australian family law the welfare of the family pet has not been thoroughly or conclusively investigated. Normally this issue is resolved by informal agreements between the parties.

Having read this you may now look at your pet in a very different light give them a big hug and enjoy them and the way they live in the moment.

We can learn a lot from our pets.

James Paton.

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