Karl Lagerfeld, the former Creative Director at Chanel, died in 2019, leaving behind probably the most famous cat in the world, Choupette (although a close second has got to be the lawyer who couldn’t remove the cat filter on Zoom during a Court hearing in 2021). Lagerfeld was the theme of this year’s Met Gala and not one but two celebrities paid tribute to his legacy by dressing as Choupette.
It has been reported that Lagerfeld left Choupette $1.5 million in his Will, although the amount has not been officially disclosed, and that she is now being cared for by Lagerfeld’s former housekeeper Françoise Caçote. But is it legal to leave money to an animal and how does it work practically?
In legal terms, pets are considered personal chattels unless they are a working animal, in which case they are a business asset. Choupette is a social media “influencer” with over 250,000 followers on Instagram and Lagerfeld claimed that she made $3m in one year during his lifetime, although one may question whether an influencer pet can be described as a “working animal”. HMRC probably have more traditional forms of animal work in mind.
Either way, an animal is property, and it is not possible to leave money directly to a piece of property. So, what are the options?
One option is to leave the legacy on trust for a pet. The general rule for trusts is that they have a definite object, ie human beneficiaries. The logic is so that the beneficiary can enforce the terms of a trust.
Trusts which are for the maintenance/welfare of animals in general, rather than specific animals, are valid as they are charitable trusts (Lewin on Trusts notes that ‘In the case of a charitable trust it does not matter that there is no human beneficiary who can compel its performance, because the Crown as parens patriae does so through the Attorney-General‘).
A trust for a testator’s pet gets around this by being a “trust of imperfect obligation”. The funds are stipulated to be paid to a legatee to use the funds to look after the pet. If the legatee, who is to act as nominated trustee, is unwilling to take on the trust then the trust fails, but if the trustee accepts the trust then the Court will make a Pettingall order (from the case of Pettingall v Pettingall (1842) 11 LJ Ch 176) under which it will pay the money to the trustee but require the trustee to give an undertaking to use the funds for the required purpose ie to look after the pet. If the trustee fails to do so, then those entitled to the property on the failure of the trust (perhaps other beneficiaries named in the Will or those who benefit under intestacy) can apply to Court to enforce the trust, or argue that the trust has failed and seek the property under resulting trust.
Another, perhaps more straightforward option, would be to leave the pet alongside a cash legacy to a nominated person, although the terms would need to be carefully drafted to ensure that person only receives the legacy if they agree to look after your pet. There would be no one to oversee the person’s conduct so the nominated person would have to be carefully chosen as someone the testator trusts. But the gift shouldn’t require further court involvement after the testator’s death.
Gifts for the benefit of pets can occasionally result in hard fought estate disputes.
In the United States, Leona Helmsley (a billionaire hotelier who, along with her husband, owned properties including the Empire State Building), famously left the majority of her estimated $8 billion estate on charitable trust for ‘purposes related to the provision of care for dogs’. She left a specific trust fund of $12 million for her Maltese dog Trouble and disinherited two of her grandchildren ‘for reasons known to them’. The grandchildren contested Helmsley’s Will on the grounds that she lacked mental capacity to make it. The dispute settled with $6 million from Trouble’s trust being paid to the two grandchildren.
In England, in the recent mutual/mirror wills case of Re McLean, the deceased, Maureen McLean, and her husband Reginald in 2017 made mirror wills in which they each left their estates equally between their four children (three being from Reginald’s first marriage and one, the claimant, from Reginald and Maureen’s marriage). In 2019, following Reginald’s death, Maureen made a new will leaving her entire estate to her son. Reginald’s three children from his first marriage challenged the 2019 Will on the basis that the 2017 Wills were mutual Wills. Maureen’s son refuted the challenge, claiming that his mother wanted him to have her property in order to look after her parrot and jenday. The Central London County Court upheld the 2019 Will, but the case is being appealed.
Ensuring the welfare of pets in wills requires navigating a legal landscape that blurs the line between property and companionship. The key is to give careful consideration as to who should be the guardian to your furry friend (bonus points if they dress up as your pet to celebrate your legacy after you’re gone!).
This article was originally published in Today’s Will & Probate, June 2023
For further information, please contact:
Deborah Nicholls-Carr, Withersworldwide
deborah.nicholls-carr@withersworldwide.com
