I grew up with dogs, cats, birds and other pets. They are now an important part of our son’s life and development.
Australia has one of the highest rates of pet ownership in the world. Over 62% of Australian households own pets. There are more than 24 million pets in Australia.
Dogs are the most popular pet, with 37% of households owning a dog. Cats are the second most popular pet, with 31% of households owning a cat. As I write this our son’s cat, Jellybean is at home in my sock drawer. This brings screams of happiness from my son to see.
There are 4.2 million pet birds and another 2.5 million other pets. These include horses, rabbits, guinea pigs, reptiles and other mammals.
Is a pet an asset? Oscar the celebrity dog with his own Instagram account.
The two parties had shared custody of Oscar and his Instagram account. This is until their relationship soured. Flavell and Edwards are not in possession of the pup.
In the separation they all want Oscar.
The pair seeks damages for an alleged breach of contract by Gillespie, want him restrained from removing Oscar from their care and want legal recognition that they are the dog’s “legal and beneficial owners”. They are also seeking an injunction to stop Gillespie from posting anything defamatory about them.
In turn, Gillespie is seeking control of Oscar’s Instagram account, which “may or may not still be online but which could still be an item of some value” and damages for the pair’s “detention” of the dog he claims is his.
“In other words, both parties want the dog,” the NSW district court judge Judith Gibson in 2020.
They all believe the dog to be worth over $20,000, therefore, the matter was elevated to the NSW Supreme Court.
Now you may be saying just go to the dog pound and get another dog. I agree. But it shows that animals are assets and those assets can be put in the Will.
Can you put pets in your Will?
Under Australian law pets are property. The law provides that animals are the property of or owned by the person who purchases them from the pet shop, the breeder or the pound. Pets are therefore treated like any other property and can be given as a gift to a person or organization. Your pet, while part of the family, is also an ‘asset’ that you can give away in your Will.
- The argument to NOT give away your pets as a specific gift
Our law firm does not like specific gifts in Wills. They add complexity. We do not like giving away pets as gifts especially with money, as it puts more complexity into your Will. It is generally better to let your Residuary Beneficiaries just look after your pets. If you do not make provision for your pet in your Will the Residuary Beneficiaries inherit your pets.
Your Residuary Beneficiaries probably love you. And they will probably love your pets. They are the thread that keeps your memory alive.
Also, it is highly likely that your animal will die before you.
- The argument to mention your pet in a specific gift
Animals, like small children, cannot support and care for themselves. Animals who are not provided for by their “adoptive parents” may find themselves in the local pound or euthanised. Giving your pet to a special person (and perhaps some money) protects them.
How do I ‘gift’ my pet to a specific person in a Will
But, if you must specifically give away your furry, feathered or scaly friend, then there are examples on how to do so when you start building your Will on the Legal Consolidated website.
Examples of pet-giving clauses in Wills:
Specific Gift – Pet and money
My cat called Jellybean, my boxer dog called Prince and any other pets that I may own at the date of my death and the sum of $5,000, but this gift fails if I have no pets at the date of my death
Full Name of the Person getting the pet in your Will:
First Name: Thomas
Last Name: Smith
Specific Gift – specific beneficiaries, plus backups with conditions
My black and white cat called Minki (and any other pets) together with the sum of $10,000, but this gift is subject to and conditional upon my pets being kept in a …. [for the full hint just start, for free, building the Legal Consolidated Will online]
Full Name of the Person getting your pet when you die:
First Name: Thomas
Last Name: Smith but if Thomas Smith is dead or unable to care for my pet then my mother Muriel May Smith but if Muriel May Smith is dead or unable to care for my pet then Minky Mini Kitty Commune (ABN 69 348 678 275)
Specific Gift in a Will – right to live in the home with a pet
My black and white cat called Minki (and any other pets) together with the sum of $10,000, a life estate in [10 Current Street, Suburb] or any home that I own at the date of my death for life. All rates, taxes, …. [for the full hint just start, for free, building the Legal Consolidated Will online]
Full Name of the Person getting the right to live in the home with the pet:
First Name: Thomas
Last Name: Smith but if Thomas Smith is dead or unable to care for my pet then my mother Muriel May Smith but if Muriel May Smith is dead or unable to care for my pet then …. [for the full hint just start, for free, building the Legal Consolidated Will online]
Create a pet care plan in a Will?
Not in your Will, but in a cover letter share a detailed list of caring for your pet. Include dietary restrictions, favourite toys and even temperament issues. This information helps identify friends, family members and charities.
Can I provide money to look after my pet in my WIll?
You cannot leave money directly to your pet – but you can nominate a specific beneficiary to look after them and leave a gift to that person to cover the associated expenses.
How much money should I give to the specific beneficiary in my Will that is looking after my dog?
Unsure of how much is required to set aside for your pet? Then speak with your vet. A family member or friend is happy with no money – or a few thousand dollars. But some charities are not so giving.
If the charity can not make money or break even, they may not care for your animal.
I know this from bitter experience. Since being admitted as a lawyer in 1988 I have had the privilege of looking after many dogs and cats that charities have refused to look after for my dead clients. This is because the accompanied money was not enough! In one instance my client had donated over $120,000 to an animal charity during her lifetime. At her death, the charity refused to take Ralf her loving Labrador Retriever. With her family living overseas, with their permission, my wife picked up that wonderful pup and he is an important part of our family. Her children came from Scotland last year and visited us and Ralf.
If you are leaving your pet to a charity ensure there are sufficient assets to last your pet’s lifetime. Care costs include food and special dietary needs. Veterinary expenses include special veterinary care if your pet develops an illness or age-related disorder. Consider grooming (our cocker spaniel, Marcia, needs continual cutting), toys, outings and other items you want for your pet.
Example of giving cats in a Will:
Ananya is a widow and lives with her two cats.
She is concerned about their care and welfare when she dies. She wishes for her friend to look after her two cats when she is dead. She calculates that the cats cost around $50 a week. If they live a long and healthy life they have at least 10 years left.
$50 per week x 52 weeks x 10 years = $26,000
Letter of wishes for you pet – keep it with the Will
In addition to naming who should look after your pet, you can also write a letter of wishes, giving the person who will be caring for your pet all the information they need to know to be your pet’s carer. Your letter of wishes has two main purposes: first, it provides your pet’s carer with vital information such as dietary needs and medical issues, and second, it allows you to specify how you’d like your pet to be cared for. The letter can also contain important information such as microchip ID number, age and breed.
What happens if I don’t mention my Pet in my Will? Is a pet an asset under Australian law?
Under Australian law, pets and animals are classified as property. Therefore, you can mention pets and animals in your Will. This is as a Specific Gift. You can also state how your pet is cared for.
However, if you do not make a Specific Gift in your Will, your Residuary Beneficiaries inherit your pet. You own your house, bank account, cars and a pet. The pet is just another asset that is given to your Residuary Beneficiaries. It you trust the Beneficiaries in your Will to look after your pet, then you probably do not need a Specific Gift.
$12m in a Will to a dog called ‘Trouble’ – challenging a Will that leaves money to a pet
If you leave money to a pet and not much to your family then you can expect trouble. (Excuse the pun.)
In 2007, USA property owner Leona Helmsley leaves $12 million in her Will for her dog called ‘Trouble’.
Her two grandchildren successfully challenge the Will. ‘Trouble’ the dog only gets $2m. Because of the death threats ‘Trouble’ ends up needing $100k per year in security.
Put a Legal Consolidated ‘considered person clause‘ in your Will to reduce the success of family members challenging your Will.
Gift in Will to RSPCA challenged
Similarly, in Marshall & Ors v Redford  NSWSC 763 a net estate of $255,453 is left to the RSPCA. There is no provision for the deceased’s two adult children.
This is also successfully challenged by the deal person’s three children. The gift to the charity is reduced by 60%.
In considering the reasons for the gift, Master Macready states:
“…this provision probably was driven by the deceased’s second wife. There is absolutely no evidence of any contact between the deceased and the RSPCA. The situation is thus quite different from where one has a charity which has benefited the deceased during his lifetime, or with whom the deceased had taken an interest during his lifetime. In these circumstances it seems to me that there is little competition against the claims of the Plaintiffs in these proceedings.”
From Legal Consolidated’s research, about 5% of Will challenges involve gifts to charities.
Are pets property? Or are pets to be treated like children?
The strange family court dog case of Grunseth & Wighton
Mum and dad break up. Their only ‘child’ is their dog. Who gets custody of their loved one? Can the Family Court treat pets like children? Can the Family Court allow you to take the pets for the weekend?
These questions are answered in Grunseth & Wighton (2022) FLC ¶94-099;  FedCFamC1A 132.
This case dramatically changes how Legal Consolidated drafts pets in Will clauses. You can update your Legal Consolidated Wills for free. And you should do so. However, if you have your Will with another taxation law firm you should get them to review the Will and update it.
In this Family Law case, ‘mum’ and ‘dad’ each sought orders for possession of Roxy. Roxy is an 8-year-old Spoodle.
Now, you may cry when you hear this. But Roxy is old. Roxy had such limited value so as not even to appear in the list of assets to be divided.
‘Mum’ purchased Roxy. This is for the husband’s daughter from a previous relationship. But ‘mum’ remained the registered owner of Roxy.
The trial judge said that justice and equity are best served by adjusting the property interests of the parties so that ownership of Roxy is transferred to the husband.
Mortified the wife appealed the decision to the higher court.
The wife argued that the primary judge erred. She argues the judge should not have taken:
- into account the emotional attachment of the husband and his daughter to Roxy; and
- failed to take into account her attachment to Roxy.
Sadly, the matter seems too hot to handle. The Full Court handballs the decision. The Full Court argues that there is a mutual intention between the parties. This is that Roxy is purchased for the husband’s daughter. But, obviously, the daughter is not a party to the family law proceedings. Therefore, the wife had no legal or equitable interest in Roxy. Therefore, it is not appropriate for the court to make an order to transfer Roxy.
Does the court treat pets like children in your Will?
The Full Court cruelly states:
“As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.”
What if Roxy the dog has value?
This question is a bit like the above Oscar, the celebrity dog, with his own Instagram account.
The Full Court in Grunseth & Wighton states “if the animals have significant value, they can be valued in the usual way”.
So the answer to the above questions? The Family Court deems pets as ‘property’. It will not conduct parenting proceedings for pets.
But what if Roxy is the Edenhope-bred kelpie, named Hoover? Hoover sold at a dog auction for $35,000. In this case Hoover, like our Instagram dog above, is an asset in the ordinary course of a property settlement.
But, Roxy like many family pets is of limited financial value – except to the owners, of course! That is why I believe the case to be wrong. Beauty is in the eye of the beholder. No court can argue something is of little value when others believe the asset to be of high value. It is illogical reasoning by the court.
Nevertheless, it is a judgement that we have to now consider when you build your pet in Will clauses. Start, for free, building the Legal Consolidated Will to find out how we now draft these gifts of pets in Wills.