Estate disputes: Can a pet’s inheritance be contested?
In Australia, it is not possible to leave estate assets directly to a pet, because they are not a legal entity. However there are two ways you can ensure that your furry friend is well cared for after you die.
1. Leaving extra provision to a beneficiary
The first is to simply leave extra provision to one of your beneficiaries for the sole purpose of caring for your pet. This may require hiring a separate person to ensure the beneficiary is obeying your wishes or it will require that you choose the beneficiary who you trust the most to care for your pet.
2. Creating a trust for your pet
The other option is to create a trust for your pet. The difference between a trust and straight inheritance is that a trust requires that conditions are met before funds are distributed. A trustee is appointed to ensure that the conditions are met and that funds are distributed in accordance with the trust. Creating a trust and appointing a trustee is considered a safer option for providing for your pet, this is because it creates legal obligations on the trustee. If a trustee fails to meet the conditions of the trust or conducts themselves in a way that conflict with the interests of the trust they will be held personally liable in court. For instance, the trustee cannot use funds for their own benefit or personal gain.
Who can contest a pet’s inheritance?
As a relative of a deceased person who left a significant amount of money to a four-legged friend you may feel slightly disadvantaged. The process for contesting a pet’s inheritance is the same as contesting any other Will. This is done by way of a Testator’s Family Maintenance Claim.
Under s 90A of the Administration and Probate Act 1958 (Vic) an application can be made to the court for an order awarding an eligible person further provision from the estate. This claim is often referred to as a Part IV claim.
Section 90 of the Administration and Probate Act 1958 (Vic) defines who are eligible persons. Some examples of eligible persons include:
- A spouse or domestic partner of the deceased.
- A child of the deceased (including adoption or step-children).
- A former spouse or domestic partner of the deceased (who has not finalised Family Law proceeding).
- A registered carer of the deceased.
- A grandchild of the deceased.
- A person who was a member of the deceased’s household.
- A person who for a substantial period of time believed the deceased to be their parent and was treated as a natural child.
The process of contesting a pet’s inheritance
To establish a claim for further provision the deceased must have had a moral duty to provide for the eligible person and that the Will fails to make adequate provision for their proper maintenance and support. To determine the court will consider many factors which include the following:
- The relationship between the eligible person and the deceased
- The financial means and needs of the eligible person
- The health status of the eligible person.
A factor considered by the court is the competing needs of other beneficiaries of the estate. Usually the other beneficiaries are adult children or a domestic partner, whose needs are often just as important as the applicant. However, a pet’s needs are clearly less significant. For instance, if the average dog costs $15,000 from the beginning to the end of their life, one would wonder why Rose Ann Bolasny, an accountant in New York, left $1,750,000 to her Maltese Terrier.
Finally, a will can be challenged based on suspicious circumstances. Suspicious circumstances involving a will can arise when significant changes are made not long before the testator’s death. Depending on the circumstances of the testator, it might be arguable that it is suspicious to leave significant provision to a pet, over a close family relative. Another ground to challenge a Will is a lack of testamentary capacity. If substantial evidence can be produced which indicates that the testator was not of sound mind when making provision for a pet rather than close relatives, if successful it will invalidate the Will.
Speak with an estate lawyer
If you believe you may have grounds to challenge a Will or if you think that you may find yourself in a Will Dispute, or needing to Defend a Will please do not hesitate to contact the team at Hentys Lawyers today.
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