Fact 1: You cannot leave your money or other property to your pet
- In Queensland you cannot leave money or property to your pet, however much you love it. This is because pets are not capable of inheriting money or property under our law.
- Many people worry about what will happen to their pets after they die. This can be very stressful for pet owners who love their pets dearly. So what can you do for your pet? There are several possibilities:
- Your pet can be given away to a loving home before your death when you have the opportunity to arrange your affairs in good time.
- However, some pet owners could not bear to be parted from their pets before they die, particularly if they are sick or alone. In that case, arrangements could be made for the loving care of your pet immediately before your death, if you are incapacitated, or for pick up of your pet immediately after your death, to be followed by its on-going care by those who will love and cherish your pet for the remainder of its life.
- Your pet can be left to a beneficiary (someone you leave money or property to) in your will - this is best advised in the case where the pet is known and loved already by the person you have made your beneficiary.
- Your pet can be left to a beneficiary in your will together with a pecuniary legacy (a cash amount) for its maintenance - this is again best advised where your pet is already known and loved by the beneficiary in question. Otherwise, it is impossible to know whether the pet will be cared for once the legacy has been obtained.
- Your pet can be left to a beneficiary in a will as a proviso to the receipt of a pecuniary legacy. In that case, if the beneficiary cannot or will not take the pet, the legacy will not go to that person. However, it is impossible to ensure that the beneficiary will continue to care for the pet if he or she does accept the legacy in your will.
- Your pet can be left in the care of the RSPCA Pet Legacy Program - this enables your pet to be cared for by the RSPCA until a new home is found for it. The RSPCA in each State has a pet legacy program, which requires that you leave a bequest to the RSPCA. This is best for those who have no willing carer amongst their family and friends, or for those with very long-lived pets such as parrots and tortoises. Contact the RSPCA in your State for details of this program or (in Queensland) visit www.rspcaqld.org.au. Alternatively, other animal charities in your State may be able to assist you.
Fact 2: You can leave your money or property to an animal charity
- It is possible to leave a bequest (of property) or a pecuniary legacy (cash) to the care of animals generally provided the bequest is for charitable purposes. Many animal charities advertise for such bequests in Queensland, and include suggested wording for bequest clauses in your will
on their websites. It is particularly important to use the correct form of words if you write your own will or use a purchased will kit.
- The wording of a bequest clause can be important so that it is clear that the bequest is for a charitable purpose within the meaning of that term in Queensland, and that the bequest is given with a general charitable intention. If not, the bequest may not be able to be carried out.
- Although Queensland law does not specifically mention animal welfare as a charitable purpose, it is very widely stated, and will include an animal care charity.
- There are three things to remember here:
- It is better to have legal advice when making a bequest to a charity of any kind to ensure that it is practicable, and worded correctly;
- If you write your own will or use a purchased will kit, look at the website of the animal charity you want to leave money or property to so you can use the charity's preferred bequest clause wording;
- It is important to let the charity know about a bequest in advance so that it can make suggestions as to what kind of bequest would be most useful, suggest standard bequest clauses to use (the ones on the charity's website may not always cover your situation), and discuss with you how the bequest will be used.
Fact 3: You cannot ignore your family and only remember your pet in your will
- While you can make any legacy or bequest that you want to charity, each Australian state has legislation which allows your family members and your other dependants of various kinds to make a claim on your estate which can overturn or reduce any charitable legacy you leave in your will.
- Therefore, while you may leave your entire estate to an animal charity, a family member or dependant who is a proper claimant on your estate, and who is found not to be properly provided for in your will, may apply to the court have proper provision made to them. Depending on the circumstances, this type of application may mean that the entire bequest will be lost for the animal charity. In addition, there will be substantial legal costs involved which might take up the whole or a large part of your estate.
- There is extensive case law on the issue in Australia which strongly favours family claimants as against charities of all kinds. Therefore, it is important for any will-maker who wants to leave a legacy to an animal charity to take into account the possibility of a family provision claim.
- Ultimately, there is nothing that can practically be done to avoid such claims, but the following steps are advisable:
- have legal advice on the framing of the legacy and its wording
- discuss openly with your family any intention you might have to leave a legacy to an animal charity
- subject to legal advice, avoid leaving an entire estate to an animal charity, unless you have no family or dependants
- inform the charity of your intention to leave a legacy, and take the charity's advice as to what kind of legacy would be most suitable.
Things to remember:
You should instruct your lawyer to make your will, and review it regularly. In that context and subject to legal advice, it is usual NOT TO:
- leave a legacy directly to your pet e.g. 'and I leave $3 million to my rabbit, Munchie'
- leave complicated or onerous conditions attached to any legacy connected to your pet e.g. ' and I leave $15000 to my niece on condition that she look after my beloved dog, Gottfried, and that she feed it only fillet steak, sliced thinly, and mixed with bread cubes measuring 8 cm cubed, plus minted peas, all warmed to 55 degrees C, and walk him twice a day at dawn and dusk only'
- leave your entire estate to an animal charity to look after your pet, though a bequest is appropriate if the charity undertakes to look after the pet through a pet legacy program
- leave your entire estate to an animal charity unless you have no family or dependants who might make a family provision claim
- leave any bequest to an animal charity without discussing the proposed bequest with your family
- leave any bequest to an animal charity without letting that charity know about it and seeking its advice on how to word your bequest and what type of bequest would be most useful.
This information sheet is part of a series of research projects on bequests and planned giving funded by the E F and S L Gluyas Trust and the Edward Corbould Charitable Trust under the management of the Perpetual Trustees Company.