Pets win prizes

Following the death of legendary fashion designer Karl Lagerfeld on 19 February 2019, one particular beneficiary drew the attention of the world’s media. It was reported that Choupette, a Burmese cat, stood to receive a gift equivalent to £1.2m under Mr Lagerfeld’s French will (The Times, 19 August 2024).

Gifts to – or for the benefit of – animals are surprisingly common features of probate litigation; those who spent the Christmas period with extended family may well sympathise with the instinct to benefit pets over humans. This article attempts to explore the practical issues that arise in the making and drafting of such gifts. It considers whether, under English law, Choupette would have been the cat that inherited the cream. 

Gifting animals: the bear essentials

Testators often wish to ensure that pets or other animals falling in their estate go to a good home. Otherwise, their animals’ fate may be unpalatable: they may pass into residue and – if of any value – be sold, with the proceeds distributed among relevant beneficiaries.

However, gifting an animal is not as simple as it may seem. It is often said that an animal is a chattel, to be gifted like any other, but that is not always the case. While a tame or domesticated animal is indeed a chattel that a testator can bequeath by will, a testator is unlikely to have a proprietary interest in a wild animal, and so the gift of such an animal would likely fail. The position becomes complex where animals are not easily classified as tame or wild: deer in a deer park, grouse on a moor, bees in a hive, and so on.

In Morgan v Earl of Abergavenny (1849) 8 CB 768, the plaintiff executors succeeded in establishing title to deer that were “tamed and reclaimed”, although arguably the court passed the buck in failing to lay down a general rule, holding that lawful title to deer will depend on each case’s particular facts. 

To complicate matters further, animals may be incidental to – and therefore pass with – gifts of real property. For instance, the resident carp may pass with a devise of a carp pond. A testator’s failure to mention the inhabitants expressly in the devise could be a red herring. As prize carp can sell for tens of thousands of pounds, the proper construction of such a gift is an important matter for an executor – or their insurers.

Executors seeking to administer such a gift will do well to take appropriate advice. Administrators too may need to consider whether an animal falls into an intestate estate, to be duly administered. A good starting point is Williams, Mortimer and Sunnucks – Executors, Administrators and Probate (22nd edition) at 34-04 onwards.

Personal representatives may also have to consider animal welfare issues or statutory requirements that may need immediate attention after death, particularly with livestock. This could be a basis on which to apply for a limited grant.

Enforcing gifts to animals

An outright gift of an animal does not guarantee that the animal is looked after, or even that the animal passes to the recipient at all. The beneficiary may disclaim it, especially where there is a particularly fierce or venomous bequest.

So how can the testator ensure the welfare of the creature in question?

Making a payment to the animal directly is sadly not an option. An animal has no legal personality: a manatee may not be a legatee, nor a swift take a gift. Animals cannot hold property, nor do they have standing to hold the executor accountable for failing to distribute – or indeed to bring any other claim.

The authority for this proposition is found in Moosun v HSBC Bank plc [2015] EWHC 3308 (Ch), where Snowden J struck out a claim brought by “two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years”, holding at [10]: “[…] dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) [though these principles predate the Woolf reforms] defines ‘claimant’ as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void, and accordingly, I am satisfied that in so far as the claim purports to be made on behalf of the two dogs it should also be struck out.”

So, under English law Mr Lagerfeld’s gift to Choupette would thus have been a catastrophic failure. The late fashion designer would have been better advised to make the gift to a trusted human, and have that gift be conditional on the recipient looking after the animal in question. The more valuable the gift, the more likely it is that the recipient will adhere to the condition. But there will never be a guarantee, and – even if the recipient is willing – careful drafting is needed to ensure the condition is enforceable.

Thought should also be given to how subsequent events might impact the performance of the condition, and ideally a will should provide for this prospect expressly, unlike in Watson v National Children’s Home (The Times, 31 October 1995, Judge Colyer QC). In this case, a testator gifted half of his estate to the National Canine Defence League on the condition “that the said league will look after my domestic pets in their kennels during the remainder of their natural lives”. The testator died without surviving pets. A construction dispute followed and it was held that the gift was taken absolutely, the condition being impossible to perform.

Private porpoise trusts

A condition, even if drafted properly, is still an imperfect solution. One alternative is a gift in trust, but drafting trusts to benefit animals is to open a can of worms. The essential problem is that there are no legally competent beneficiaries to enforce the terms of the trust. A private purpose trust without beneficiaries to enforce it is usually invalid, infringing the so-called beneficiary principle. However, a trust to benefit animals may or may not be an exception to this fundamental rule.

In Re Dean (1889) 41 Ch D 552, the court considered a gift in trust to benefit the testator’s hounds, ponies and horses. North J did not look these gift horses in the mouth, holding that the trust was valid, a decision which is not easy to explain or justify. This was not a charitable gift, and the reasoning at [557] hardly inspires confidence: “It cannot be said that the trust must fail because there is no one who can actively enforce it.”

Unsurprisingly, this decision, and the broader principle that a private trust to benefit animals may be valid, despite the want of a beneficiary, has been widely criticised. These trusts were put in the category of “troublesome, anomalous and aberrant cases” by Harman LJ in Re Endacott [1960] Ch 232 at [251]. It is thus a brave will drafter who relies on a private purpose trust to benefit particular animals.

An alternative may be to expand the class of beneficiaries to create a valid charitable trust; or to include some (two-legged) beneficiaries to ensure validity and to appoint a protector with standing to enforce. It is little wonder that the more common solution is to avoid the trust entirely, and to find a local or national animal charity that might be willing to rehome the relevant animal, and which is lawfully able to take a gift, although again, there is no guarantee that it in fact will. Better still is for the testator to make a binding arrangement in their lifetime so that their personal representatives can enforce it on death.

Ilott v Vixen: pets and the Inheritance Act

Pets also appear with surprising frequency in claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 act), being relied upon by claimants and defendants alike.

It is uncontroversial to state that the needs of a claimant’s pet(s) may, within reason, form part of a claim for maintenance, and indeed for interim provision (Weisz v Weisz [2019] EWHC 3101 (Fam) at [38]). What is reasonable will depend on the circumstances of the individual applicant. An annual expenditure of £470 on vets’ bills for two cats and two or three budgerigars was deemed extravagant by Blackburne J in Robinson v Bird [2003] EWHC 30 (Ch) at [124], admittedly a case now over 20 years old.

Pets may impact a claimant’s accommodation as well as income needs. In Banfield v Campbell [2018] EWHC 1943 (Ch), the exercising of a springer spaniel was relevant to the accommodation needs of a claimant, although it did not justify the costs of an enclosed garden.

The author has seen numerous pets’ needs relied upon by claimants and by defendants asserting competing needs, with dogs, cats, pigeons – and once, a tarantula – proudly produced during a mediation. Virtual mediations have much to commend them. 

In another memorable case, defendant trustees sought advice on the possible quantum of an intimated 1975 act claim, where one of their responsibilities was the care of a tortoise. The trustees were bound to consider the tortoise’s anticipated care costs and life expectancy – the latter exceeded that of the claimant by over a century.

The great majority of 1975 act disputes settle out of court, and one of the advantages of a negotiated settlement is that it allows an animal to pass to someone who might not otherwise benefit (say, the deceased’s pets to their unmarried partner in an intestacy). Presumably, it is possible that, under section 2(1)(c) of the act, the court may order the transfer of a particular animal outright, but surely the animal would have to be valuable, else it is hard to justify such a transfer as constituting reasonable financial provision. In contrast, the sister jurisdiction of the Matrimonial Causes Act 1973 often sees pets divided between warring spouses, as in IX v IY [2018] EWHC 3053 (Fam), where one dog was to stay with the wife, the other with the husband. Ruff justice indeed.

Conclusion

Private client practitioners may be more used to dealing with PETs than pets, but some curiously difficult issues may arise when wills and estate administrations involve animals. Practitioners should bear in mind the following:

• The classification of animals as falling in or out of an estate, or passing with or without a particular gift, is a complex body of law. Mistakes can be costly, so regard should be given to specialist texts and advice taken where necessary.
• An absolute gift to an animal will be void. A gift on the condition of looking after an animal is preferable, but care must be taken in the drafting of the condition and in making provision for different eventualities. A conditional gift can never give certainty, as – even if enforceable – the beneficiary may disclaim.
• A private purpose trust for the benefit of an animal is of doubtful validity. A charitable trust is of more certain validity, but may not give the desired outcome. Contractual or other arrangements may be more appropriate.
• The reasonable needs and costs of pets can be considered within the context of a dispute under the 1975 act.