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Can my pet be in my Will?

Ilana Kacev and Zoe Preston

Take Your Dog to Work Day celebrates that, for many Australians, a pet is as valuable a friend or family member as another person.

While Take Your Dog to Work Day highlights the importance of our furry friends in our daily lives, it’s equally important to think ahead and ensure your beloved pets are taken care of even after you’re gone.

Estate Planning and Your Pets

Legally, pets are seen as personal property, which means that when an owner passes away, their pet will pass to another person. The fate of your pet will then depend on the provisions made during your lifetime.

If you have made informal arrangements, a friend or relative may step in to care for your pet. Otherwise, your pet could be part of the residuary estate of the deceased and will go wherever the executor directs, including a shelter.

Without legal directives, your pet’s future is uncertain.

Hibbitt v Ziade [2022] NSWSC 904

A recent case in the New South Wales Supreme Court interpreted a Will that appeared to give a property to friends of the deceased in exchange for the caring for a deceased’s pets.

The deceased was a woman who had two beloved cats, Bonnie and Clyde. In her Will, she made significant gifts to a number of people and specific instructions for the trustee to hold the deceased’s residence in suburban Sydney (which was worth several million dollars) for her friends, the Hibbitts, “in return for caring for [her] two cats.”

The Court ruled the clause was sufficiently ambiguous to allow consideration of extrinsic evidence under section 32 of the Succession Act 2006 (NSW) and determined that the most persuasive evidence were the file notes of the solicitor who prepared the Will.

The file notes recorded conversations where the deceased said that she would just “have to trust” the Hibbits to fulfil her wishes. The Court found that this indicated that the deceased did not think that her executor would have any recourse against the Hibbits if they failed to take care of the cats.

Ultimately the Court ruled in favour of the Hibbitts and found that the deceased intended an immediate gift. The Hibbitts were given the house unconditionally.

Takeaways

Hibbit v Ziade showed that clear and careful drafting is required to ensure that your wishes for your pets are fulfilled.

How we can help

For more information about legal methods to protect your pet's future or any other estate planning needs, please contact Ilana Kacev, Principal or our expert Wills and Estates Planning Team.

If you would like to stay up to date with Alerts, news and Insights from our team, you can subscribe to our mailing list here.

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