Whether it’s the plot of a Hollywood movie or a threat to the children to keep them in line, the idea of leaving all of a person’s estate to their pet when they die seems to surface from time to time.
Unfortunately for all of the pets out there that were hoping to match the fortune apparently left to a German Sheppard from Texas named Gunther III in 1992, (roughly equivalent to $218 million in today’s Australian Dollars), under Australian law a pet is not able to be the beneficiary named in a last will and testament.
While an owner’s death would be very sad for a dog (I’m not 100% sure about cats), it also leaves a situation where arrangements need to be made for caring for the future needs of the pet.
There are a few different options that a person may consider when preparing their will to make sure that their furry friend is looked after.
A Trust for the care of the Pet
A trust may be set up to fund the maintenance of the animal, however care and planning is required to make sure that the proposed trust shall be valid.
A trust for the benefit of an animal is not considered to be a charitable purpose trust able to be enforced by the Attorney-General of NSW, and the animal would not be able to enforce the trust themselves, as no matter how smart they are, as they are considered property and not legal persons in the eyes of the law.
While over the years the Courts have found in some matters that a trust for the maintenance of an animal is valid, this means that it is crucial that the persons appointed as trustee of the trust and guardian of the pet agree to honour the wishes of the willmaker, as without their cooperation the trust would be unenforceable.
Gift of Pet and Legacy
A simpler option may be to gift the pet to a suitable friend or family member, along with a gift of money sufficient for the future needs of the animal. Care should again be taken in considering the right person for the job, not only to make sure that the person agrees to receive the pet, but also because there is no ability to guarantee or enforce the level of care that the friend or family member will provide.
Gifts to Animal Charities
Charities such as the Animal Welfare League NSW or RSPCA may be a viable option for rehoming the pets for people who don’t have loved ones able or willing to take on the responsibility when they pass.
Euthanasia of Pets
It is strongly recommended that this option be carefully discussed, considered and agreed to by the executors appointed to carry out the wishes contained in a person’s last will and testament before including this option in relation to the willmaker’s pets.
While your pets may be saddened to learn that they won’t become millionaires, you can still make plans to do your best to protect their future wellbeing if you aren’t around to care for them yourself.
If you have any questions about preparing a new or updated will, contact Baker Love Lawyers.
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