A devoted horse owner might despair at the thought of the horse’s future if he or she should die under any circumstances. Would anyone look after it as dutifully as the owner let alone ever develop its potential recognised and nurtured by the owner? Unless there is plan in place, from both a practical and legal point of view, the answer is very likely not. A responsible and caring owner should ideally have some arrangement in place, the more so if time and money have gone into buying and training the horse. On the owner’s demise, the person in charge of the deceased’s affairs will likely consider the horse a burden rather than a benefit and attempt to dispose of it as quickly as possible or just neglect it.
On death, a horse (like any animal) is just another species of personal property that forms part of the estate of the deceased, to be dealt with according to a Will made by the owner or, if none, under the laws of intestacy.
A personal representative is usually appointed by the Court to take control of the deceased’s property, to collect the assets, pay the debts and liabilities and to distribute the balance of the estate according to the Will or to Statute (if there is no Will). An appointment is necessary so that a transfer can be signed if the horse is sold. But there is always a delay of weeks or months from the date of death before the Court is ready to grant legal representation to the executor/executrix of the Will or next of kin if there is no Will. A horse has to be looked after in the interim.
The owner’s legal personal representative will have to determine that the deceased in truth owned the horse. There are a number of possibilities as regards ownership of a horse: it was owned solely by the deceased; or it was owned by another legal entity like a company (common with high value horses); or it was owned by the deceased together with other people, as in a syndicate or co-ownership arrangement – in which case only fractional ownership belongs in the deceased estate; or it was leased – in which case the lessor owns the horse and will want it returned; or loaned in which case the death will end the loan and the horse will revert to its owner. The deceased’s family will know the background to the horse and be a position to contact the true owner (if not the deceased), even before any grant of legal representation.
The personal representative, prior to formal appointment by the Court, will need to engage immediately with any agistment business that cares for the horse. Short term, the agistor is likely to go on caring for the horse if binding assurances are given about payment of agistment to enable the deceased’s affairs to be sorted and managed.
If the horse was clearly gifted in a Will that appears validly executed, the personal representative will probably let the beneficiary take the horse before a grant of formal legal representation by the Court. But one problem with a Will is this: even if made (and the majority of people never make a Will), Wills are not updated regularly. As a result, there is a risk that the gift cannot be given effect because, for example, a horse named in the Will is replaced in time by another horse which is not specially named (and therefore the gift lapses), or the beneficiary pre-deceases the deceased (the gift lapses) or becomes unable or unwilling to care for the horse due to changed personal or financial circumstances (the gift is rejected). In other words, arrangements for the horse contemplated in a Will have to be kept continually reviewed and updated to be effective and this is usually impractical for most people.
If asked about the fate of a horse in the event of her or his death, an owner might well say that she or he has a good understanding with a close friend to take the horse if anything should happen. But this is not, legally speaking, adequate: It will not stand up legally against a valid Will. But this might not matter of course if no-one named in the deceased’s Will and no member of the deceased’s family has a claim to or would want the horse. But horses can have considerable capital value and future potential, so these sorts of understandings are weak in a legal sense.
Given that Wills are seldom made and even if made, can quickly become outdated, what should an owner do if making a Will and regularly revising it is regarded as potentially costly and impractical? Here are some suggestions.
Firstly, an owner should ensure loved ones understand what she or he would like to happen with the horse. These wishes should be written down, dated and signed and kept with the owner’s important papers in a safe place. They need to be realistic and practical. This recording is important for horses that have a low value since they are most at risk if their owner should die – neglecting any horse is not acceptable but it can unfortunately happen due to ignorance or lack of interest. Loved ones left behind will be thankful that the deceased left a record of her or his wishes for the horse.
Second, professional riders, trainers and horse breeders are able to give an idea of the value of a horse on the open market. The owner may know of or be friendly with one or more of them. The owner might put down the names of possible contacts for the personal representative to approach with a view to selling the horse on a commission basis.
Third, the owner could make a gift of the horse subject to a condition subsequent. It goes like this: An agreement is made in writing (it must be in special form called a ‘deed’) between the owner and the trusted person willing to take the horse if the owner dies. It contains a clause gifting the horse (by description) or any horse owned at the date of death, to this individual but the gift itself is made subject to the owner’s death, whenever that might be. A gift expressed like this way does not become effective until the owner dies. In other words, the owner remains the owner of the horse until he or she dies. Such a conditional gift (best prepared by a lawyer) will mean that on death, the owner ceases to be the owner of the horse, so the horse does not form part of the owner’s deceased estate. But like a Will, this conditional gift depends for its efficacy on the trusted person surviving the owner and remaining willing and able to take the horse. As time goes by, this person might need to be replaced by someone else.
Horse owners should engage with family members about wishes for their horses so that a plan, formal or informal, can be put in place to protect their welfare if their owners should pre-decease them.
14 January 2019
© Michael Mackinnon, Solicitor & Independent Counsel