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Succession Law News, June 2010
PROVIDING FOR A PET IN YOUR WILL
Are you fretting about what happens to your pets after you pass on? Read about providing for pets in your will
A number of issues fall to be considered by testators who own pets, or who wish to provide a gift in their wills for the care and protection of animals generally.
Pets
Pets may be left to a beneficiary of the testator in the testator’s will. This may be an appropriate course where the pet is already known by the relevant beneficiary, who can be relied upon to love and care for the animal. A legacy may also be gifted to such a beneficiary for the maintenance of the animal, although it will probably be beyond the capacity of the executor to ensure that the money is spent on maintaining the pet satisfactorily.
It may be that a legacy is left to a beneficiary on the condition that that beneficiary agrees to take the pet. Again, it may be virtually impossible to ensure that the animal is cared for in a way that is satisfactory to the testator.
Where no willing beneficiary exists, a pet may be left to the RSPCA or a similar organisation along with a bequest to cover the cost of the animal’s care until a new home is found for it.
Animals generally
A bequest may be made under a will for the general charitable purpose of animal welfare. Care must be taken that such a bequest is drafted to make it sufficiently clear that the relevant amount is given for a charitable purpose and with a general charitable intent. It is important that legal advice is obtained in drafting such a bequest, to ensure that it satisfies the relevant tests for a charitable purpose and that it is practical. It is also advisable that a testator contact the relevant charity or charities before making provision for them in a will, so that the recipient organisation has an opportunity to advise the testator on how best to direct the bequest.
It must be noted that bequests under a will may be challenged by family members and dependents under the Chapter 3 family provision provisions of the Succession Act 2006 (NSW), on the grounds that such parties have not been properly provided for in the will. A donation to an animal charity may be lost entirely. See, for example, Marshall v Redford, where the family provision claims of the testator’s three adult children reduced a bequest made to the RSPCA by 60%. Such problems may be minimised by careful planning and drafting of bequests to animal charities.
If you require assistance with a succession or probate matter, please do not hesitate to contact Chris Owens or Annette Fontana on (02) 9560 3388 for friendly, quality advice. We can also assist you with making a will and other estate planning matters.