Associate Amy Dunlop discusses the importance of considering your pet's welfare when making your Will.
Making provision for your pets in your Will
Under Australian law, pets are considered property. It is important, therefore, that you consider them properly in your Will. Failure to clearly indicate who you wish to be responsible for your pet upon your passing means they could become the property of your executor – who may or may not feel quite as passionately as you about your beloved animal's welfare.
There are several general options available to you to ensure your pet (or pets) continue to be cared for in a way that meets your expectations.
Gifting your pet
One of the simplest options is to gift your pet to a trusted family member, friend, or charity. Of course, the intended recipient may decline this gift, so you would want to be certain that they will accept. This would mean having a conversation with them and reaching an agreement on any relevant conditions prior to the finalisation of your Will.
Some animal charities, such as the Animal Welfare League and RSPCA, have legacy programs that will enable you to leave your pet with them, together with a legacy sufficient to support their care and eventual rehoming. This is a popular option for those without anyone they trust to care for their pet.
Giving a legacy to the carer of your pet
Where you have appointed a family member, friend, or charity to care for your pet in a particular way, you may include in your Will a specific gift that leaves a sufficient legacy, typically money, to your family member or friend that enables them to meet your wishes.
Naturally, you would need to ensure that the beneficiary is willing to accept this responsibility and can be trusted to do so. There have been instances in the past where legacies have been reappropriated by carers for their own purposes after having had the pet prematurely euthanised.
A pet trust
Unlike a legacy in support of a specific gift, which operates on a more discretionary basis, a pet trust is a legally binding arrangement that allows a nominated trustee to hold property, normally cash, to cover all reasonable costs associated with the care and wellbeing of your pet, even so far as an interest to reside in your property to care for your pet so long as your pet is alive.
It is important to remember that pets have no legal 'personhood', and as such cannot enforce the obligations of the trust. So, while a pet trust may appear to be a suitable option, some Will drafters may advise against such trusts as they risk being ineffective. It remains essential that you discuss the potential of a pet trust with the intended trustee to ensure their willingness to carry out your wishes in respect of your pet's care.
A further layer of protection may be to set out your wishes in a pet 'care plan' which can be kept with your Will. Such plans can include important details about your pet, such as:
- registration number
- vaccinations
- dietary requirements
- favourite toys; and
- temperament issues.
These details will be important for anyone you intend to have responsibility for your pet, not just the trustee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
