Can I force someone to take care of my pets after I die?
In a recent decision by the New South Wales Supreme Court decision of Hibbett v Ziade [2022] NSWSC 904 the Court interpreted a will that appeared on its face to give a property conditional upon the beneficiaries caring for the deceased’s two cats.
The case involved a woman who was pre-deceased by her de facto partner and had two cats, Bonnie and Clyde, that she dearly loved. The deceased gifted her estate to various close friends and after a number of specific gifts, left the rest and residue of her estate to her trustee:
- To pay all debts owing including funeral expenses and estate fees;
- To hold the deceased’s residence (which was worth several million dollars) for two of her friends, the Hibbett’s, “in return for caring for [her] two cats.”; and
- To hold the balance of the estate to be divided equally between various friends.
The Court was asked to determine if the gifting of the house to the Hibbett’s was conditional upon them caring for her cats, or if they inherited the house absolutely and it was merely a wish of the deceased that they cared for her cats.
When interpreting a will, the Court will first determine whether the clause is sufficiently clear in achieving the deceased intentions. On its plain reading, the Court questioned whether the gift really was conditional as this would have created various practical problems, such as to what standard of care would the cats have to be maintained, for how long did they need to be cared for, and where? The Court also queried if the deceased really intended that the executor of the will held the property on trust until the death of the cats, as no-where else in the will did this type of provision apply.
However, the Court ruled the clause was sufficiently ambiguous to allow it to consider extrinsic evidence under section 32 of the Succession Act 2006 (NSW). Various forms of evidence such as recollections of conversations with friends at the time of the will being created where examined. However, the Court determined that the most persuasive evidence was the file notes of the solicitor who prepared the will. The file notes recorded conversations where the solicitor expressed concerns regarding the ambiguity of the clause and sought clarification. The deceased however, maintained the clause should be kept as it was and that “she would just have trust” her friends she was giving the property.
The Court found that, particularly in reference to the deceased stating she must trust her friends, she did not intend to make the gifting of the house conditional upon caring for the cats, but instead wished for her cats to be cared for. The court criticised the drafting of the will as unclear and ambiguous and stated that it was not for the deceased to determine how a will should be written to avoid ambiguity, but the role of a solicitor.
Ultimately the Court ruled in favour of the Hibbett’s and gave the house unconditionally, upon the payment of all just debts of the estate.
The decision highlights the importance of a well drafted will to ensure that your wishes are adequately provided for, and to ensure that costly court proceedings are avoided when determining your intentions.
Call the experienced lawyers at The Law Office of Conrad Curry to discuss your estate planning needs on (02) 4050 0330 or book online.
