Pet ownership has increased over recent years, with an estimated 36% of households owning the UK’s 13.5 million pet dogs. Cats are not far behind, with 29% of households owning 12.5 million cats. But what happens to pets owned by a couple if they separate?
Prenuptial agreements are arrangements made between a couple setting out how they intend to deal with their assets and liabilities, both during their relationship and in the event that they separate.
So-called ‘pet nups’ are becoming more popular, to deal with ownership of pets in the event of a divorce, separation or dissolution of a civil partnership.
What is a pet nup?
A pet nup is similar to a prenuptial agreement or prenup in that it is an agreement made between a couple specifying what would happen to a pet in the event of a divorce or separation.
The courts cannot award custody of a pet as they are classed as chattels or possessions. This means that a pet would be given to one party as part of the divorce settlement.
It may be that one party is able to show that they were given the pet as a gift, and they deal with everything related to the pet, such as registration at a veterinary surgery, microchipping and payment for food and veterinary treatment, which could mean that they are given the pet. However, there are no guarantees.
Why make a pet nup?
Case law has given the term ‘clerical error’ a wide interpretation, covering a mistake in office work or a routine mistake as well as mistakes in the preparation and typing out of a Will.
In the case of Barrett v Hammond and others [2020], the deceased’s Will and codicil divided his residuary estate into 52 parts, but a subsequent codicil meant that only 44 parts were disposed of, leaving 8 parts without an heir.
The judge found that there had been no intention to leave these 8 parts of the estate intestate. He stated that the court has an ‘obligation to see that, so far as possible, the intentions of the testator are honoured’.
The supporting evidence showed that the deceased intended that his estate should be divided into the right number of parts to make the gifts to those listed in the Will and codicils. The solicitor had not appreciated that 8 parts were unaccounted for, and this amounted to a clerical error.
Interpreting the phrase ‘clerical error’ widely, the judge rectified the Will, dividing the estate into 44 parts so that no part of the estate was intestate.
A failure to understand the testator’s instructions
If the testator instructed the solicitor or other Will writer to put certain matters into the Will, but there is a failure of understanding and this is not done, the courts can be asked to make a rectification.
In some cases, there may also be a case for professional negligence if the solicitor or Will writer has not handled the case to the professional standard that a reasonable individual would expect of them.
Wills disputes
Wills disputes can be complex and become entrenched very quickly if not handled carefully. The first step is usually to try and resolve matters amicably. If you are concerned that a Will contains mistakes, you are advised to speak to a contentious probate solicitor to find out whether you have a case and what options are open to you.
Even if a mistake has not been made, you may be able to make an Inheritance Act claim if you were not provided for in the Will, but you were closely related to the deceased or they were supporting you before their death.