As pets increasingly become part of the family in India, some pet owners may wonder how they can provide for their furry friends in their Will. The idea is in trend after late industrialist Ratan Tata left a Will that made provisions for ‘unlimited care’ for his pet dog Tito.
While pet parents view their animals as akin to family, the legal framework has not fully caught up with this sentiment. Indian law presents a unique challenge in this area as pets are still legally considered personal property rather than independent entities capable of inheriting property.
However, as more people consider their pets’ well-being in their posthumous planning, understanding the limitations and options within Indian law becomes crucial.
Legal Status Of Pets In India
Says Dr Suresh Surana, chartered accountant: “According to the Transfer of Property Act, 1882, the ‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.”
When the law says “living person”, it includes a company or association, or body of individuals, whether incorporated or not. “As such, going by the said provision under the Transfer of Property Act, 1882, there doesn’t seem to be a provision, which permits transfer of property to a pet,” Surana says.
However, the term “person” is not specifically defined under the Indian Succession Act, 1925.
Surana says that courts often refer to the definition of “person” contained in the General Clauses Act 1897, which defines “person”, which “shall include any company or association or body of individuals, whether incorporated or not”. As such, there is no specific provision which provides that a pet can inherit property. “Also, in India, pets are considered to be personal property and hence, one class of property cannot hold the title to another piece of property,” he adds.
Adds Sunayana Basu Mallik, partner, King Stubb & Kasiva, Advocates and Attorneys: “The underlying presumption is the law of succession governs human lives. Thus, pets are not direct beneficiaries.”
He adds that the concept of guardians and managers applies to mentally ill persons. However, such legal concepts if extended to pets can facilitate pet care for their entire lifespan.
“Additionally, pets do not have religion, and our succession law is drafted recognising religion and customary practices within it,” says Mallik.
However, Indian law recognises taking care of pets. Adds Surana: “In India, Section 3 of the ‘Prevention of Cruelty to Animals Act, 1960’ casts responsibility on every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.”
Citing an example, Surana says that the Supreme Court of India, in one of its judgments in the case of Animal Welfare Board of India vs. Nagaraja, had ruled that the right to dignity and fair treatment as enshrined in and arising out of Article 21 of India’s Constitution is “not confined to human beings alone, but animals as well. In another instance, the Punjab and Haryana High Court in the case of Karnail Singh & Others Vs State of Haryana [2019] ruled that the entire animal kingdom including avian and aquatic species has a distinct legal persona with corresponding rights, duties, and liabilities of a living person.
However, at present, there are no specific laws in India regulating the adoption of pets (dogs in particular). But there is a ‘Rehoming Agreement’, which is an agreement between the owners/rehoming family who has the lawful owner of the dog and the adopter/adopting family who wants the ownership of the dog.
“This agreement transfers the ownership of the dog from one party to another and includes inter alia provisions to ensure the care and welfare of the dog by the new owner/adopter. The agreement not only makes you the lawful owner, but also helps in avoiding any future disputes in this regard,” Surana says.
Legal Structure To Ensure Pet’s Care Beyond Traditional Will
According to Nidhi Singh, partner, IndiaLaw LLP, pet owners can use specific strategies to provide for their pets’ care. This would include the following.
Using A Will With Detailed Instructions: In his Will, Ratan Tata provisioned that Tito, his German Shepherd Dog will continue to be cared for by Rajan Shaw, Tata’s long-serving cook. Similarly, pet owners can specify a trusted individual in their Will to be responsible for the pet’s care and allocate funds for their well-being and upkeep
However, as these directions lack legal enforceability, the designated caretaker will not obligated (under law) to adhere to them.
Create A Conditional Trust: Though formal ‘pet trusts’ don’t exist in Indian Law, Singh suggests that one may consider setting up a Conditional trust within their Will. This trust can instruct a trustee to allocate funds specifically for pet care, while an appointed caretaker will manage daily responsibilities of pets.
A trustee oversees financial compliance, ensuring funds are used appropriately for the pet. However, since Indian law does not recognise pets as capable beneficiaries, pet owners cannot legally enforce these provisions. Therefore, though Indian courts may not fully enforce such trusts, but a conditional trust will add a layer of accountability, providing some assurance that the funds will be directed as intended.
Third-party Agreement With Animal Welfare Organisation: Owners may also establish informal agreements with animal welfare organisations or trusted individuals to care for their pets in exchange for financial support specified in the Will. Although such agreements are not legally binding, they can guide executors and caretakers, offering greater clarity about the pet’s future care.
Potential Risks In Leaving Funds For Pet Care To A Third Party
Though leaving funds for the care of your pet in a Will with a designated caretaker is possible, it may come with certain risks. A caretaker may not always use the funds as intended and might even divert them for personal use.
Since your pets cannot advocate for themselves, ensuring compliance with pet care instructions can be challenging under Indian laws. However, pet owners can mitigate such risks by implementing some strategies, such as creating a conditional trust for pet care. This would secure the intended use of the funds that you leave behind for your pet, as a trustee will oversee the distribution of assets solely for pet-related expenses.
Adds Singh, “Pet owners can also specify regular audits by the trustee which will help verify that the funds are spent appropriately, while appointing a third party ‘protector’ to periodically check on the pet’s condition.”
One can also name a successor caretaker to ensure continuity in case the primary caretaker is unwilling or unable to fulfil their role.
Role Of Pet Insurance
Typically, a pet insurance policy includes coverage for healthcare expenses, including veterinary check-ups, vaccinations, preventive treatments, and some listed emergencies, such as accidents and surgeries. For pet owners, having a pet insurance policy would ensure that the funds designated for the pet’s day-to-day care are not depleted by medical expenses.
Adds Singh: “Pet owners can prepay premiums or set aside funds in the trust for insurance payments that would ensure that the policy remains active. Moreover, selecting lifetime insurance coverage that can be easily transferred to the caretaker would further secure the pet’s ongoing care.”
Advocating Reforms For Pets
Globally, several countries are shifting toward recognising pets as “sentient beings” rather than property. In India, pets are still legally regarded as property, without rights to inheritance or independent welfare enforcement.
Says Surana, “In the US, nearly all states have passed laws recognising pet trusts, and allowing pets to be designated as beneficiaries of a Trust. However, setting up a pet trust involves additional considerations and to manage practical challenges, a pet trust in the US generally appoints individuals as trustees. Also, the trust’s duration is linked to the lifespan of the pet(s) involved.”
In India, the discourse around animal welfare is evolving. Says Singh: “The Prevention of Cruelty to Animals Act, 1960, protects pets from abuse, but doesn’t grant them property rights. Animal welfare advocates and legal experts are pushing for stronger protections, which could eventually lead to reforms.”
