Can I Include a Pet in My Will?

by Chloe Yoo

October 5, 2020
Legal guides, Wills & Trusts

Even if you have never raised a pet, have you noticed that Australians love pets? According to Animal Medicines Australia, over 62% or 2 in 5 Australian households have pets, making Australia possess one of the highest pet ownership rates in the world. However, there goes a saying that only a person who has had pets will understand how much that pet is part of one’s family. Nevertheless, is it not essential to ensure that all family members are cared for when you are gone? In this article, find out if and how you can include your pet in your will.

Can I include my pet in my will?

Yes. Under Australian law, pets are the property of their owner. That is not to suggest that the owner can treat the pet however they like. There are legislations such as the Prevention of Cruelty to Animals Act 1979 (NSW) which regulate this. Yet, when it comes to a will, pets are like any other property. They can be gifted or left in another person’s care. It also means that pets cannot hold property themselves.

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How?

Other than gifting your pet to someone through an informal arrangement, there are two formal ways to include your pet in your will.

1. Set up a trust under your will

The best way to secure ongoing care for your pet is to establish a testamentary trust. These are trusts that are incorporated into a will. The intention of creating this trust must be for the benefit of your pet. By doing this, you are ensuring that your pet will be in someone’s care should you pass away.

Some points to consider for trusts under a will

Here are some points from the NSW Trustee & Guardian to consider:

You should obtain the consent of the carer of your pet before you allocate that role to them in your will.
The trustee must be dependable, trustworthy, and someone who will enforce the terms of the trust. An example is the NSW Trustee and Guardian.
Your pet should have a reliable guardian or carer appointed in your will. As the carer provides the daily maintenance of your pet, we recommend that you nominate two different people to be the carer and the trustee. There is a potential conflict of interest because the trustee has a duty to administer the trust properly.
Your will should provide detailed written instructions on how to take care of your pet and what to do if your pet dies for a particular reason. The terms should also offer directions on how to use the trust funds. Again, it would be best if you discussed with the potential carer and trustee before you create the will and within your lifetime.
Your trust should have sufficient funds. The amount should be enough to cover the rest of your pet’s lifetime. These include food, veterinary expenses, grooming, toys, travel and boarding costs. We recommend you also consider whether your pet has specific dietary requirements or illnesses that require special care. There have been many cases where insufficient funds have let to pets being neglected by their new carer.

2. Leave a legacy to a beneficiary under your will

A legacy is a sum of money left to a person in a will. The Succession Act 2006 (NSW) does not state whether a person can leave a legacy directly to their pet. As a result, the presumption is that the beneficiary of the legacy must be a natural person. For instance, you cannot leave $10,000 to your pet. Instead, you can leave your pet to the beneficiary (the carer) who will receive the money under your will to take care of your pet. The beneficiary can be a family member or friend.

Alternatively, organisations like the RSPCA and the Animal Welfare League have ‘legacy programmes’ where you can give the legacy to the organisation. The organisation will place your pet in its legacy facilities or find a new home for your pet. In NSW, the RSPCA’s legacy program is called the ‘Home Ever After Program‘.