Many of your clients will have animals and pets that will require ongoing care after their death and it is important that your client gives some thought about this when writing their Will.
There are a number of options available to a testator who wishes to ensure that their pet is cared for; these include:
• a legacy to a friend or relative with a non-binding request that they look after the animal
• A legacy program with an animal charity which involves a gift of money to the charity in exchange for the charity caring for and re-homing the animal
• A trust for the care and maintenance of a pet after death
The second option is a popular choice for those people who do not have anyone who is prepared or able to look after the pet. An appropriate charity should be contacted to find out about the schemes they offer or whether they are prepared to re-hone an animal in return for a
legacy.
The third option, creating a trust within the Will to care for a pet must be drafted with care. There have been various objections raised against these trusts.
The main problem is that the beneficiary can be unclear or uncertain. In Morice v Bishop of Durham [1804] it was said that “every…trust must have a definite object. There must be somebody in whose favour the court can decree performance”.
There was previous concern that these trusts may infringe the perpetuity period however the likelihood of this has decreased since the period was extended to 125 years.
They have also been found to be void on the ground that the purpose is not defined with sufficient certainty.
Despite these objections trusts for the maintenance of animals have been upheld. In Re Dean [1889] the testator left his estate to trustees subject to an annuity payable to his trustees for 50 years for the maintenance of his horses and hounds. It was held that the trust was valid.
However you client chooses to provide for an animal after their death they need to consider their pet’s expected lifespan, the cost of the upkeep of the pet for the rest of their life and who is a reliable person to look after them. It is important that the nominated person agrees to care for the pet particularly if your client just wishes to leave them a legacy with the hope that they care for the animal.
