A Dog is for Life – but what happens afterwards?

Dogs may be man’s best friend, but leaving testamentary gifts in your Will to your dog – or any other pet – is not the same as leaving gifts to your human friends.

Although you can’t quite ‘leave it all to the dog’, pet owners can indeed make provision in their Wills for the maintenance of their pets. Clauses in Wills need to be carefully drafted though, to make sure that adequate provision is made for pets and to avoid a situation that might lead to a partial intestacy.

A recent trend

In recent years, a number of ‘high-net worth pets’ have made the headlines including Choupette, Karl Lagerfeld’s blue-cream Birman cat who received a $200m fortune on his owner’s death in 2019 and Oprah Winfrey’s dogs who are reportedly to benefit from a $30m trust on her death. However, this is not just a facet of celebrity culture since the aim in executing a Will is to ensure that all members of your family are provided for, and as a nation of animal lovers, pets tend to fall within this category. Indeed for many, their pets are their family.

The legal position

In the eyes of the law pets are considered ‘personal property’, provided they are not classed as ‘livestock’ or ‘working animals’ and thereby classified as ‘business property’. This means that you cannot make gifts to pets under your Will or leave them a percentage of your residuary estate since they have no legal personality (and cannot open a bank account!). However, this does not mean that you cannot make any provision for your surviving pets in your Will, and in fact there are several different mechanisms available for you to do so.

The Available Options

Option 1: Gift your pet to a close friend or family member

The simplest option is to gift your pet to an individual in your Will (‘the nominated beneficiary’). This should be someone that you trust to look after your pet, and it is advisable that you let them know beforehand of your intentions to ensure that they are prepared to take on this responsibility.

Alongside the gift, it is also possible to make financial provision for a nominated beneficiary to care for your pet. This can be done in two ways. One method is an outright gift in your Will to the nominated beneficiary with an accompanying Letter of Wishes stating that you wish for them to use the money for the animal’s benefit. Whilst these are only wishes, and thus non-binding, it is encouraged that the beneficiary follows any clearly expressed wishes and if this is someone whom you trust and who has agreed to take on the responsibility, it is likely that they will honour your wishes.

However, if you want greater certainty, you can set up a discretionary trust in your Will. The effect of this is that the nominated beneficiary will only become entitled to trust money when appointed by the trustees. The trustees of discretionary trusts are guided by your wishes, as set out in the accompanying Letter of Wishes, and tend to make appointments in line with these wishes. However, ultimately, such decisions are within the discretion of the trustees.

Option 2: Defer the rehoming decision to another

If you do not have any friends or family who you trust to take care of your pet on your death, you have the option to leave such rehoming decisions to your executors or a charity. There are charities that provide a rehoming service where owners can leave their pets to the charity in their Will and the charity will find your pet a new loving home. In addition, as the people responsible for administering your estate, you can also stipulate in your Will that you want your executors to make this decision.

Option 3: Trust for the benefit of the animal

While the law generally requires that all non-charitable trusts have a beneficiary with legal personality, the courts have carved out some exceptions. One of these exceptions are ‘trusts of an imperfect obligation’ which include trusts for the maintenance of specific animals. For example, in Pettingall v Pettingall (1842) the testator made provision for his favourite black mare and the Court held this to be a valid gift. Such trusts can be included in your Will but are limited to a maximum duration of 21 years, which should cover the lifetime of most pets. The benefit of the trust will be paid to the legatee who looks after the animal. However, it is important to note that, as with any trust, there may be costs involved with setting up and administering the trust.

Option 4: Letter of Wishes

Finally, there is the option of leaving a simple Letter of Wishes stating who you would like to look after your pet.

Having a Letter of Wishes without a supporting Will is never advisable. It is important to be aware that these are just an expression of wishes, and are therefore not legally binding. However, having something in place is better than nothing at all and, as long as it is easy, practicable and the recipient of the pet accepts the responsibility, there is a good chance that your administrators will do their best to respect your wishes.

Conclusion

The UK is clearly a nation of animal lovers with 51% of UK adults owning a pet. However, only 28% of UK adults report having a Will. If a pet owner dies without a Will, it will be up to the administrators of their estate to determine what should happen to their pet. This will be the person who is determined most ‘entitled’ under the intestacy rules and this may not be the person you want to be making such decisions about your beloved pet. By making provision for your surviving pets in your Will, you can ensure that they are well cared for.

If you are a pet owner in England and Wales wanting to make provision for your four-legged (or otherwise – any snake owners out there?) friend, this is something that our Will drafting experts in the Trusts & Estates Team at Anthony Gold would be happy to assist you with.

Please contact us if you are interested in making a Will, whether you are a pet owner or not. Our expert team can assist you if you have any questions, contact us on 020 7940 4060 or send us an email at mail@anthonygold.co.uk.