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30/12/2021
Estate Planning
1️⃣ Emergency Care for your Pet/s
✅ Ensure you leave a copy of your Pet Care Plan with …
✅ If you become sick or injured …
2️⃣ Long-term Care for your Pet/s
✅ If your Pet/s live longer than you …
3️⃣ There are different approaches to providing for your Pet/s in your Will
⚖️ Avoiding Will Disputes [NSW Case examples]
⭐️ What if you make no special arrangements for your Pet/s?
🔎 Further Reading ➲ Companion Animal Law Guide: 2nd Edition
You know your Pet/s best.
By completing a detailed Pet Care Plan for each of your Pets, you will be providing your emergency or long-term carer with essential information which will improve your Pet/s quality of life.
Important details to include are your Pet/s:
➲ Name;
➲ Breed;
➲ Age;
➲ Likes, Dislikes, Special Treats, Favourite Toys;
➲ As much detail as possible about everything really: personality, inside/outside, anxieties, phobias, typical daily routine; etc.
➲ Vet's Contact Details;
➲ Microchip Details, Medical History + Routine [desexed, vaccinations, etc.]; and
➲ Pet Insurance Details, Policy Number, etc.
🆘 Emergency contact/s;
⚖️ Enduring Power of Attorney [EPOA] / Executor/s of your Will;
🗄 Estate Planning paperwork;
🔒 Digital Safe Custody Vault; and
⚓️ Vet for safekeeping.
You can sign up for a free "My Pet is home alone" card which you can carry with you at all times in your wallet or with your medications list or medications (if applicable).
The card specifies the name and breed of your pet/s, and provides emergency contact details, as well as your Vet's phone number.
You can request a free card from the NSW Trustee + Guardian here.
Pets and Positive Ageing ACT has produced a Pet Emergency Card which can be carried in your wallet to provide instructions on who can care for your pet should something happen to you.
Please contact Pets and Positive Ageing ACT if you would like one posted to your address.
Be on the lookout as other States may have, or may soon introduce similar Pet Emergency Card schemes.
Another example is the Animal Alert Card produced by the Animal Justice Party.
You can obtain one from its stall at public markets or by writing to the party.
Ensure you are able to keep your Pet/s with you [as long as possible] by providing specific written directions ahead of time and including financial provision for the support of yourself, your Pet/s long-term care, maintenance, health + pet insurance + potentially your Pet/s carer in your Enduring Power of Attorney [EPOA] / NT Advance Person Plan.
Think of setting up an informal arrangement with the RSPCA as a back-up plan just in case for some reason your friends or family circumstances change and they are no longer in a suitable position to take on the responsibility for long-term care of your Pet/s.
RSPCA Home Ever After / Pet Bequest / Pet Legacy program
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.
In this 2001 NSW Court decision [1], Mr. Simpson had left his entire estate via his Will to his second wife, and in the alternative should she pre-decease him, to the RSPCA.
Nothing was left to his three children from his first marriage.
As it transpired, his second wife pre-deceased him, so everything went to the RSPCA.
His estate after sales of all estate property amounted to a total of $397,453.58 in cash.
The three children from Mr. Simpson's first marriage successfully contested the Will under family provision legislation and were awarded 40% of the estate after legal costs.
⚖️ Leaving everything to an animal charity (or any other charity) is not wise where there are children, family and others who may be eligible to make a family provision claim on your estate.
⚖️ The wasted legal costs paid out of the estate in this case were circa $50,000.
In this 2021 NSW Court decision [2], Ronald Michael Flanagan (the deceased) and former wife were legal guardians of the plaintiff.
For the ensuing 28 years after the deceased and his former wife separated, contact between the plaintiff and the deceased diminished from minimal to non-existent.
Whole estate of circa $570,000 left to RSPCA.
⚖️ The plaintiff made a successful Family Provision Claim for $160,000.
⚖️ Wasted legal costs paid out of the estate in this case were circa $10,000 but this was only due to the plaintiff refusing a Settlement Offer for $170,000 which would have avoided the need for the matter to go to trial.
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!
This free guide to NSW law relating to companion animals provides a broad overview regarding what you need to know as a Pet owner.
🐶 Hard copies can be found in the NSW State + Local Libraries; or
🦜 View/download the online guide via this Law Society of NSW link.
Footnotes:
[1]. Marshall & Ors v Redford [2001] NSWSC 763
[2]. Flanagan v Fisher [2021] NSWSC 598
Version History:
Original post ➲ 17 Dec 2020
Updated ➲ 30 Dec 2021 [Various updates incl. addition of Flanagan v Fisher [2021] NSWSC 598].
Credits:
Cover Image courtesy of Lenin Estrada on Unsplash
This article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This article is intended for general interest and information only.
It is not legal advice and nor should it be relied upon or used as such.
Always consult a lawyer for specialist advice specific to your needs and circumstances.
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