Paws For Thought: Provisions for Pets in a Will

All legal advisors
11 February 2020

Did you know that 50% of UK adults own a pet? With approximately 10.9 million pet cats and 9.9 million pet dogs in the UKBritain is clearly a nation of animal lovers. But what many pet owners don’t realiseis that in the eyes of the law, their furry friends are considered property in the same way a car, table and mobile phone is. 

Pets have no legal personality,” explains Sam Warner, Senior Legal Advisor (and Labrador owner) at Arken.legal. “As a result, it’s not possible to leave a bequest to an animal under a Will. The pet itself can be left, just like any other asset. But unlike other assets, the testator may wish to ensure their pet is taken care of for the rest of their natural lives. With nearly half of all households having pets, we felt the option of leaving specific provisions for pets in a Will needed to be easily stipulated within the Arken Professional questionnaire, ensuring long term care could be put in place with the click of a button. In addition, our software goes that step further by producing a Lasting Power of Attorney, should a pet’s owner be incapacitated.” 


Considerations 

There are a number of options for making provisions for pets in a WillThe first decision to make is what happens to the animals – who they are to be given to and what is to happen to them. 

Family or a Close Friend 

While the simplest option is to leave the animal as an outright gift to a person, there is always the risk that a chosen beneficiary may decline the gift. When faced with an enormous slobbery dog or an elderly and infirm cat, even the closest of friends may have second thoughts about taking on the responsibility of an animal. Therefore, it’s vital that testators check with the intended recipients of their pets whether they would be willing to assume the role of new parent to their fur-baby. And while agreement may be easy to solicit when the prospect of becoming a surrogate pet-parent is only hypothetical, when faced with the reality, a chosen beneficiary may baulk at the prospect. So, it’s always a good idea to select an alternative person just in case the first choice of carer cannot receive the bequest. 

A Charity 

If the testator cannot or does not wish to find a suitable home for their animal, they can elect for a charity to take the pet and find it a new home in the event that they pass away. The RSPCA, for example, offers a Home for Life service where the pet is bequeathed to the charity under a Will and the RSPCA undertakes the job of finding a new home for it. (You can easily locate the RSPCA and its registered charity number within Arken Professional’s charity data base search function.) 

The Executors’ Choice 

Testators can also choose to pass the decision over to their executors – by leaving the animal to their executors and trustees, they can also leave an Expression of Wishes guiding them as to the type of home that they might wish for their pet. This adds flexibility to the provision of care for an animal. While an Expression of Wishes allows the testator the ability to name beneficiaries of their pets and alternates, it also gives them the ability to change their wishes in the future without changing their Will. 

Financial Security 

Pets are expensive. In the UK, people spend an average of £1,150 on their pets each year, and so a testator may wish to leave financial provision for their animal in the event of their death. But as it’s impossible to leave money directly to the pet because they lack legal personhood, it is necessary to leave such sums for the benefit of the pet. The simplest solution is to leave a sum of money directly to the beneficiary who is receiving the animal with a wish that it be spent for the animal’s benefit. This may not, however, give all testators sufficient peace of mind because, if the money is given as an outright gift in this way, there is nothing to stop the beneficiary from spending the money on themselves as they will be the owner of it. 

discretionary trust could be set up so that the beneficiary receiving the animal could be drip-fed funds by the executors of the estate – this gives more certainty to the testator that the whole of the fund set aside for Fido’s upkeep would be spent for the benefit of the pet and not on an exotic holiday. There would be more checks over the release of the funds by the executors who would have the discretion not to release the funds. The executors would also be able to withhold funds if the beneficiary declined to care for the pet.  

An alternative option requires a little more forward planning but gives testators much more certainty that their pet will be appropriately provided for. A trust can be set up at the same time the Will is made - for the benefit of the pet -  with a nominal amount of capital settled on it and this trust can then be bequeathed a larger sum by Will. The law of Equity generally requires that a trust has human beneficiaries, but the courts have conceded as ‘concessions to human weakness or sentiment’ that an anomalous type of trust can be created where there is a trust for some kind of public purpose. This is called a “trust of imperfect obligation” because there is no human beneficiary who can enforce it, and can be split into three main categories:  

  1. trusts relating to tombs and monuments; 
  2. trusts for the provision of masses in private; and 
  3. trusts benefiting a specific animal. 

Trusts of imperfect obligation can be paid only for the purpose for which they are set up, and are permitted by the courts because they tend to “promote and encourage kindness towards [animals], to discourage cruelty… and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race”. But despite these lofty purposes, because these trusts represent a deviation from the beneficiary principle, the courts have stated that the maximum term of such a trust is limited to a duration of 21 years, which will normally be fine if the animal in question is a dog or a cat (although Crème Puff, a cat from Austin, Texas, holds the record of the world’s oldest cat at 38-years-old, so there are always exceptions). But creating such a trust for the benefit of animals with much longer average lifespans like parrots or tortoises may be inappropriate as they can live much longer than humans – indeed, Winston Churchill’s blue and gold macaw is reportedly still living at the ripe old age of 118, far longer than any human beneficiary could conceive of being able to care for such a bird, and certainly outside the period allowed by a trust of imperfect obligation. 

Future Flexibility 

One other consideration to ask clients is whether they are likely to replace pets or acquire additional pets. If a client expressly makes provision for Oscar the cat in their Will and Oscar dies but is replaced by Stanley the cat, the provisions in the Will for the care of Oscar may not necessarily apply to Stanley. It is therefore a good idea to expressly state that the provisions of the Will apply to all pets owned by the testator at the time of their death. 

Sadly, 54% of people don’t have a Will, leaving their treasured pets to the vagaries of intestacy laws,” continues Sam. “That’s a significant number of animals potentially ending up in locations where their owners hadn’t intended them to be.” 

 

Arken users can access a webinar recording that demonstrates how easy it is to help your clients safeguard the interests of their pets within their Will and LPA. We also discuss the issues that can arise when making long term plans for your pet/s and how to address them within the Arken Professional questionnaire. For more information, email info@arken.legal or call 01892 867 792.