Deed of Gift [Australia]

Long-term Care for your Pet/s …

✅ If your Pet/s live longer than you …

Formal Arrangements

What do you need to understand in terms of your Will?

⚖️ You cannot name your Pet/s as direct beneficiaries in your Will.

⚖️ For clarity, you cannot include statements in you Will such as “I give $X to my cat Toby".

⚖️ Legally a pet is regarded as your property. That is, as one of your possessions.

⚖️ Pet/s are not legally recognised as a ‘person’ under the law.

⚖️ This means they cannot own property, hold a bank account, sue or be sued, or in this case, receive a gift as a beneficiary directly under a Will.

There are different approaches to providing for your Pet/s in your Will

The approach to take will depend on your personal circumstances, what you prefer for your Pet/s, and their needs.  

Gift your Pet/s

Some simple + valid options to consider for the long-term care of your Pet/s under your Will are as follows:  

✅ You can make a gift of your Pet/s to a trusted family member, after you have discussed it with them and they have agreed to take on the responsibility.

✅ Provide for an alternative, Plan B, trusted friend or family member, just in case.

✅ In addition, it would be wise to give a sum of money (legacy) in your Will to the actual recipient of your Pet/s to cover your conservative estimate of your Pet/s lifetime reasonable living, maintenance and anticipated healthcare costs based on your experience.

✅ Alternatively, as a Plan C, you could gift your Pet/s to a registered pet charity, rescue charity or pet shelter such as the RSPCA to be re-homed or adopted by another pet-lover.

✅ Ensure you get the name of the charity or shelter 100% correct, and provide for an alternative charity as a further backup just in case.

✅ If you have more than one Pet, consider whether you want them kept together.

✅ Clearly communicate everything to your Executor/s so they can work quickly to ensure your Pet/s are kept as safe and comfortable as possible at a time which will be difficult for them as well as for all concerned.

Testamentary Pet Trust
[Legal Assistance Highly Recommended]

⚖️ If you already have a Testamentary Trust in your Will, you can expand it's scope to include provision for the care and maintenance of your Pet/s during their lifetime.

⚖️ If you don't already have a Testamentary Trust in your Will, the ability to provide for the lifetime care of your Pet/s is another reason to consider adding one.

⚖️ Where a Testamentary Trust is included in your Will solely for the purpose of providing for the lifetime care of your Pet/s it is called a Testamentary Pet Trust.

⚖️ Under a Testamentary Pet Trust the trustee holds the money for the benefit of the named Pet/s.  

⚖️ When the Pet/s die, the Testamentary Pet Trust is wound up and distributed according to the directions made in the Will, which might be to an animal charity or elsewhere.

⚖️ While using a Testamentary Trust provides increased certainty that your allocated funds will be devoted to the long-term care of your Pet/s, it is also more costly to administer.  

⚖️ Choice of trustee is important.

⚖️ Someone trusted to carry out the terms of your trust, preferably independent and experienced, needs to be appointed in the Will as trustee for this purpose.

Some Pets can live up to 100 years or more …

Certain species of animals like turtles, koi fish + birds (e.g., parrots) can live up to 100 years or more.  

⚖️ In most state and territories of Australia (except South Australia) the life of a Trust is a maximum 80 years.

✅ If your Pet/s could outlive the useful life of the Testamentary Pet Trust, it becomes crucial that you seek legal advice in order to create a specific plan for what is to occur if your Pet/s outlive the Trust established for its long-term care.

Don't give your Pets more than they need!

⚖️ Any gift well in excess of your Pet/s actual needs, opens the door to the possibility that your Will might be challenged by eligible beneficiaries.

What if you make no special arrangements for your Pet/s in your Will?

Your Pets are your property so if you make a Will and don’t make any specific arrangements for them, they will form part of your residuary estate.

Whoever you have designated to inherit the residue of your estate will then be entitled to take ownership of your Pet/s.  

If you have not spoken to your residuary beneficiaries, it may be unclear which beneficiary is to take care of which Pet/s.

⚖️ It is not difficult to foresee the potential for further disputes arising!

‍Further Reading:

For a more detailed discussion please refer to our blog article “Care Planning for your Furry, Fluffy or Fine-Feathered Pets"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What are Non-Estate Assets under Australian Law?

The following assets will not generally form part of your estate and are therefore not covered by your Will

That is, assets that are:

❌ Held in superannuation accounts, including any self-managed superannuation fund, unless/until those superannuation assets are transferred into your estate upon your passing pursuant to appropriate superannuation death benefit nominations.

Please refer here for binding superannuation death benefit nominations.

❌ Held in any separate family / discretionary trust;

❌ Owned by a company or held in any unit trust; and/or

❌ Held as “joint tenants” with another person (including bank accounts where you are only able to operate the account jointly with another person);

Assets held as Joint Tenants

Any assets held as joint tenants can only be dealt with as part of the estate if the joint tenancy is first severed into a tenancy-in-common.  

Please note: Our Wills generally do not deal with any assets that are held as joint tenants – however, our Wills give the executor/trustee the power to adjust the proportionate distribution of the estate assets, taking into account both the proportionate distribution of such non-estate assets and the overall tax implications.  

See our FAQ: What is the General Power of Adjustment in a Will?

Foreign Assets

Our Wills are drafted so that they only apply to your assets situated in Australia.  

In relation to any assets held in any overseas jurisdictions, it may be necessary to create a separate Will in the relevant overseas jurisdiction, or if the foreign assets are in a country covered by the relevant treaty, an International Will.

Notional Estates in NSW

In NSW, certain non-estate assets can be considered by a Court in making a Family Provision Order.

For more information please read our FAQ: NSW Family Provision Claims and the concept of the Notional Estate.

Business Succession Planning

If you are a co-owner of any business, consideration should be given to whether your estate will retain or dispose of your share in the business, and vice-versa for the co-owners of the business.

It is highly recommended to put in place a buy/sell agreement to allow for the business to successfully continue operations in the event of the passing or incapacity of a co-owner.  

Under a buy/sell agreement:

🧩 Insurance policies are taken out to cover the death or disablement of each co-owner; and

🧩 If a co-owner dies or becomes incapacitated, he/she is deemed to offer his/her stake for sale to the remaining co-owners and the proceeds of the relevant life insurance policy can be used to fund the purchase of that stake by the remaining co-owners.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Preliminary Note: This FAQ focuses on the applicable time limits [by jurisdiction] when you are considering contesting an Australian Will.

The legal grounds upon which you can contest a Will are a different matter which is only dealt with partially here.

Stay tuned for a fuller discussion on legal grounds for contesting a Will in an upcoming FAQ.

Background ➲ Time Limits Vary

Timing is vital to any legal matter, but it is particularly important that you seek legal advice quickly if you are considering contesting a Will.

In a practical sense, any challenge to a Will is going to be much more difficult where the executor (person carrying out the instructions of a Will) has already started to make distributions from the estate to the beneficiaries named in the Will, after being declared valid by the Court (i.e. probate has been granted).

As such, the relevant time limit to contest a Will depends on whether you are looking to challenge the Will before or after a Grant of Probate.

In general, you can contest a Will on two grounds:

1️⃣ The validity of a Will

➲ The contest should be acted upon quickly, preferably before a Grant of Probate, though Wills can still be contested and rectified after a Grant of Probate.

2️⃣ The contents of a Will

Example: For a failure of family provision or miscarriage of intentions

➲ The contest can be made after a Grant of Probate, though you should try to act as soon as possible, before the executor has started to make distributions from the estate.

Unfortunately, it can be hard to know whether you have legal grounds to challenge a Will when you haven't been provided with the opportunity to examine the Will.

A Will becomes publicly accessible upon Grant of Probate.

As detailed in our FAQ: Who is entitled to be provided with a copy of the Will and Probate Documents? most jurisdictions (except ACT, SA & WA) provide a statutory right to access a Will before a Grant of Probate, if you fall into an eligible class of persons in relation to the testator (the person who made the Will).

For everyone else, you are at the mercy of the executor's discretion; the executor could choose to send you a copy of the Will prior to a Grant of Probate, but they do not have to.

Contests Prior to a Grant of Probate‍

In one sentence: Check the Online Notices for an Application for Grant of Probate.

Who is this for?

If you do not have access to a copy of the Will or you would like to contest the validity of a Will.

Lack of access to the Will could be a significant problem, especially if you think that a Will may not be valid (for reasons such as a lack of testamentary capacity, undue influence or fraud).

Fortunately, in most states / territories, before an application for probate can be made, the executor must provide public Notice of Intention to Apply for Grant of Probate.

Notices of Intention to Apply for Grant of Probate are published on the sites linked below; please note that public notices are not legally required in South Australia and Western Australia. If, for some reason, you did not know who to contact with regards to asking for a copy of the will, you may find the relevant details from the notices.

To Caveat or not to Caveat?

Before a Will has been granted probate, it is possible to lodge something called a caveat on the Grant of Probate to prevent the Court from granting a Will to probate.

However, a caveat may not be lodged by just any person, despite what is suggested by legislation (see the table below).

Based solely on the legislation, it appears that in all states except the ACT and Queensland, any person may lodge a caveat.

In reality, this is NOT the case.

There are established cases which provide that anyone applying for a caveat must have both:

1️⃣ An interest in the estate (standing); as well as

2️⃣ Grounds to justify the application.

If you lodge a caveat in the absence of either of the above, you may be liable for Court costs with regards to the matter.

All that said, should you have the relevant standing, and appropriate grounds for contest, lodging a caveat represents the earliest time from which you might contest a Will.

By acting before the Grant of Probate, you minimise the risk of the executor having distributed some part of the estate already.

If you think you may be in a position to lodge a caveat on a Grant of Probate, we strongly advise you to contact us in regards to the matter, so that you do not run the risk of being liable for unnecessary costs.

Contests After a Grant of Probate

In one sentence: The time limit applicable to you will depend on your legal ground for challenge.

Family Provision Obligations

A Will may be contested for a failure to provide for the "proper maintenance, education or advancement in life" of an eligible family member.

(More details will be provided in the separate FAQ on Grounds for Contest, but for now, think either spouse, de facto partner, children or other dependants only).

This is a challenge to the content of the Will (not the validity of the Will), therefore you do not have to try to contest the Will before a Grant of Probate, though you should nonetheless move quickly to minimise the chance that you are frustrated by distributions of the estate.

The time limits for a family provision contest are listed by state / territory below.

Note: In New South Wales and Queensland, the clock starts ticking upon the death of the testator, and not upon Grant of Probate as in every other jurisdiction.

In each state/territory, the Court, in its discretion, may extend the time in which a family provision contest can be brought, though the applicant for an extension of time must show good reasons for why a Court should do so.

Misinterpretation of Testator's Intentions and Rectification

In each state/territory, the Court has discretion to rectify a Will, where the Will does not carry out the testator's intentions.

In all jurisdictions except the ACT and SA, the Court may only exercise its discretion where the Will does not carry out the testator's intentions because either:

❌ A clerical error was made; or

❌ The words of the Will misinterpret the intentions of the testator.

In the ACT and SA, the discretion of the Court may be exercised in any situation in which the Will fails to carry out the intentions of the testator.

Further in regards to the ACT, if the executor for the estate is the state Public Trustee and Guardian, the limitation period to rectify a Will starts from when the Public Trustee and Guardian gives public notice (that is, before a Grant of Probate has been made).

Otherwise, the time limit starts from the Grant of Probate.

As with Family Provision contests above, the Court may, in its discretion, allow challenges past the time limits specified above, though again, the party applying for the extension must make a good case as to why an extension should be granted.

In this situation, it is highly relevant whether the executor has started to distribute the estate, as the Court may take this into account in considering whether to grant an extension.

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Who is an eligible person?

Broadly speaking, an eligible person may include anyone to whom the testator has a responsibility, potentially including a current or former spouse or de facto partner, children, grandchildren, other dependants and persons living in the testator's household.

If you exclude an eligible person there is potential for a Court to make a Family Provision Order

When the testator dies, any "eligible person"may make an application to the court for a family provision order if they believe that there has been inadequate provision for them under the Will.  

If an order is made, interests under the Will may be adjusted and the applicant may be able to obtain part of the estate contrary to the express provision of the Will.

No Guarantee that any reasons given will be accepted by a Court

There is no guarantee that any particular reasons for excluding an eligible person will be acceptable.  

Whilst the likelihood of a successful family provision orders may be reduced by expressly excluding people who may be eligible persons in the Will and providing clear reasons why they have been excluded.

A Court will take into account all of the facts and circumstances.

What are some potentially valid reasons to exclude an eligible person?

The following are some examples of reasons that may potentially be considered valid:

🧩 Sufficient provision was made for the excluded person during the testator's lifetime such that further gifts would be unfair to the included beneficiaries;

🧩 The testator and the excluded person have had no contact for a long time and no relationship of love/affection exists between them;

🧩 The testator has not had any responsibility for the welfare of the excluded person for many years;

🧩 The financial circumstances of the excluded person are much better than those of the included beneficiaries and the excluded person is being excluded in order to try to achieve a balance of financial welfare amongst all potentially interested parties; and/or

🧩 The excluded person has received, or is likely to receive, significant assets from the estate of another person (eg, a former spouse of the testator, a former spouse of the testator's spouse, etc).

Please note: The Will becomes a public document pursuant to the Court Probate process, consequently any reasons articulated for excluding an eligible person will ultimately be made discoverable by the public.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

A: No.

A Binding Financial Agreement (BFA) can be entered into before or after the separation of a couple, including before, during, or after marriage or a de facto relationship.

Court Orders can only be applied for and made after the separation of a couple.

There is no prescribed waiting time or need to wait to be officially divorced.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

The court may consider the following factors

⚖️ The relationship between the applicant and the deceased person;

⚖️ Any obligations or responsibilities owed by the deceased person to the applicant;

⚖️ The value and location of the deceased person's estate;

⚖️ The financial circumstances of the applicant, including their current and future financial needs;

⚖️ Whether the applicant is financially supported by another person;

⚖️ Whether the applicant has any physical, intellectual or mental disabilities;

⚖️ The applicant's age;

⚖️ Any contribution made by the applicant to increase the value of the estate;

⚖️ Whether the deceased person has already provided for the applicant during their lifetime or from the estate;

⚖️ Whether the deceased person provided maintenance, support or assistance to the applicant;

⚖️ Whether any other person is responsible to support the applicant;

⚖️ The applicant's character;

⚖️ Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander;

⚖️ Any other claims on the estate; and

⚖️ Any other matter the court may consider as relevant.

Credits:

This FAQ was prepared by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.