There’s no doubt that Australians love their pets, in fact more than 50% of us live in a household with at least one cat and/or dog. In the last year alone, Australian’s are estimated to have spent a total of $12.2 billion on pet products and services. Whilst we all want to ensure that our loved ones are taken care of once we have passed, not many of us turn our minds to what will happen to our fur-family should our pets outlive us.
In August of 2007 hotel heiress Leona Hemsley turned her back on her relatives, and decided to bequeath her Maltese Terrier “Trouble” $12 million through a trust fund, to ensure that Trouble could receive around the clock care, be transported via private jets, maintain its luxury lifestyle at the Helmsley Sandcastle hotel in Sarasota and eventually be buried in a 12,000 square foot mausoleum beside Hemsley. Whilst this amount was reduced to $2 million by the Courts following a family provision claim, trusts of this nature are not uncommon with a Chihuahua named “Conchita” recently being left a $8.3 million Miami beach mansion and a collection of Cartier diamond necklaces.
Australian law classifies pets as a form of property, leaving room for discretion for how you wish for them to be cared for under your Will. If you fail to make a provision for your pet under your Will, they will form part of the residue of your estate and left to the relevant residuary beneficiaries. Pets can be provided for under Wills in three ways: through gifting them to a friend or charity; gifting a pet and sum of money to a friend or charity; or establishing a testamentary trust under your Will for the benefit of your pet.
You may simply make a provision for your pet under a clause in your will, entrusting them to a friend or charity that will care for your pet’s wellbeing. You may also like to consider leaving a sum of money with a direction for the beneficiary as to how that money should be used. Whilst any instructions in relation to how you would like for your pet to be cared for are not legally binding, these may held guide your pet’s new owner as to your fur-baby’s standard of care. Many charities have established programs by which a bequest is made in their favour in exchange for the ongoing care of your animal. Charities such as the RSPCA have established pet legacy programs in which dedicated staff care for your pet whilst a suitable candidate is found for re-homing.
Testamentary trusts offer a more secure mechanism for caring for the ongoing needs of your pet after you have gone. This trust structure established through your Will allows you to set aside funds to accommodate the needs of your pet for the remainder of their lifetime. You will need to think about who you would like to nominate as carer of your pet, and who would act as a backup carer should they be unable to act. As animals are classified as property under the law, it is important that you nominate a trustee that is reliable and ensure the ongoing care of your pet, as maintenance of a pet cannot be enforced by a Court should a trustee not fulfil their obligations.