People are often concerned that their beloved pet – be it a dog, cat, lizard, budgie, parrot, rat, horse or fish – will outlive them, and they want to make sure that companion animal is cared for when they are gone.
Your pet is not recognised as a family member in Australia
With 63 per cent of Australian households caring for a pet – equating to 38 million furry, feathered and scaly creatures – it is a major concern for many people that they will pass away earlier than their beloved animal.
German fashion mogul Karl Lagerfeld reportedly left part of his $300 million fortune in his will to his beloved fluffy white cat Choupette.
It seems to have worked out, as according to an Instagram post, the cat celebrated its eleventh birthday with its inherited owner, former Lagerfeld housekeeper Françoise Caçote. (Please see Don't worry, Choupette Lagerfeld is still living the high life.)
This would not be possible in Australia. Our pets are in a bit of a legal limbo, as the law does not recognise them as family members and they have no legal rights of their own.
Under NSW law a pet is regarded as property, not as part of the family. They can't receive money in a will, as property can't inherit property. As a result, beloved dogs and cats come under the same legal category in deceased estates as a car or a sofa.
Care for your pet after your death
However, there are ways to ensure your will provides for your pet.
One is by creating a foundation which has the sole purpose of taking care of the animal. A foundation director would be charged with using the funds left to it in the will to care for the pet.
You could set up a trust for the care of your pet, but there could be problems, as pets can't take action if the trustee doesn't fulfil their duties. Courts have held that a trust for the care of an animal is no more than a non-binding direction, or a request to the executor.
You could leave money to an existing animal charity, stipulating that the funds be used for your pet's welfare. The NSW Animal Welfare League and the RSPCA operate legacy programs that look after pets of owners who have passed away or who can't look after them.
Or you could leave your pet to a trusted person and leave money to them, stipulating that they should use the money to look after your pet.
Advice on caring for pets after death
But what happens if that person then dies, or can't look after the animal and gives it away? What if the charity's policies don't suit the animal? How can you be sure the foundation or trust looks after your pet?
The NSW Law Society has provided advice on this subject. (Please see Pets & Wills, Law Society of NSW.)
It would be necessary to get experienced legal advice to insert specifications into your will to ensure the beneficiary does look after your pet the way you want.
It would be necessary to get experienced legal advice to insert specifications into your will to ensure the beneficiary does look after your pet the way you want.
Joshua Crowther
Estate planning, wills and probate
Stacks Law Firm
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.