A woman in Shanghai, China recently made headlines when she cut her children out of her Will and instead elected for the major beneficiaries of her fortune to be her cats and dogs. Her reasoning? Her children no longer visited her while her pets were always there for her.
This is not a novel situation.
Had she lived in Victoria, she would have been advised that she couldn’t leave her wealth to her pets, but there may be other steps she could take to ensure they were appropriately cared for following her death.
Can a pet be a beneficiary of a Will in Victoria?
On a practical level, a gift left in a will to a pet directly would fail.
Unfortunately for many pet lovers out there, the position of the law is that a pet is a ‘chattel’ or ‘personal property.’ This means that practically, a pet cannot own property or be a beneficiary of a Will – even though they are very much part of the family!
If the Will does not provide for other beneficiaries in the event a gift cannot take effect, the most likely outcome is that the default statutory intestacy laws would apply instead. These laws operate to distribute your estate to your next of kin, and apply where you do not leave a Will, or your will is unable to effectively deal with your estate.
This may be very different to how you envisaged your estate being distributed. In addition to your wealth potentially passing to the very people you meant to exclude, it may also mean that your pet doesn’t end up being looked after by the right person or in the way you expected after your death.
To avoid this, some alternative options to ensure your pet/s are taken care of after your death include:
- Making a gift of your pet to a friend or family member under your Will. You should ensure the person entrusted with your pet’s care is someone who is able to take on the responsibility, will respect your wishes, and is likely to fulfill these wishes when you’re no longer around. In addition, you may also wish to make a financial gift in your Will to this person, subject to them accepting the gift of your pet/s, so that they are not out of pocket by agreeing to take on the responsibility of your pet when you have passed.
- Setting up in a trust for the care and maintenance for your pet in your will. This could include setting aside an appropriate sum of money to fund your pet’s care after your death, and ensuring that this money is held on trust for this purpose by a trustee of your choosing (who can ensure that it is used for the intended purpose). People who choose this option are in good company: in 2011, fashion designer Alexander McQueen left a sum of 50,000 pounds for the care of his three dogs in his Will. It’s also rumoured that Betty White established a trust to fund the care of her surviving pets in her Will.
- Speaking with an appropriate charity or animal rescue organisation, or making arrangements with a trusted friend or family member, for them to rehome your pet to another loving family after your passing.
Important considerations
Succession law in Victoria is largely guided by the principle of ‘freedom of testation’. This means that subject to certain limitations like not being able to leave assets directly to pets, a person largely has the freedom to make a Will that leaves their property as they please.
This freedom is however qualified by the risk of challenge to a Will or estate by disappointed family members.
Under Victorian law, certain “eligible persons” (as defined by the Administration and Probate Act 1958) can make a claim seeking provision or additional provision from your estate, if they can establish that you had a moral obligation to provide for him and did not discharge that obligation by your will. This is known as a family provision claim.
Importantly, a moral obligation is usually assumed in the case of spouses, partners and children. There is no equivalent moral obligation to provide for one’s pets (although many people naturally wish to do so).
A willmaker who prioritises their pets over immediate family members in their Will therefore runs the risk that their estate may up end up defending a claim from one or more disappointed family members.
However, this does not mean that your Will should not consider the future care and well-being of feathered, furry or scaly family members after your death, if this is important to you. In this situation, it is important to consider your objectives carefully and obtain specific legal advice when making your Will.
This will enable you to plan appropriately, to ensure that:
- Your immediate family and/or executors are aware of your wishes for your pet’s care and comfort when you are no longer here;
- Your objectives can as far as possible be carried out, by the person/s of your choosing;
- The provisions of your Will are valid and able to take effect; and
- You are aware of (and may be able to take steps to mitigate) the risk of any challenge to your Will or estate.
How we can help
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and we can help you prepare your Will to ensure that everyone in your family is cared for, including your beloved pets.
Contact us
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.