QLD Who inherits the pet?

[Margaret Worsley]

My older son passed away six months ago. Three months ago his wife of a few months moved interstate. She left my son's pet cat with my younger son and I. In that three months, she has made no inquiry's as to the cat's welfare, nor has she paid for the cat's food, etc. Now she has said she wants the cat.

My younger son (still a minor) is deeply attached to the last living link to his older brother. The will divides the estate into equal thirds, between in the wife, my younger son, and I, but gave my younger son his choice of things like electronic media, books, collectables, etc. My DIL was given the residual of the property as part of her third. The estate has still not been finalised. Neither the cat nor my late son's dog were mentioned in the will. She hasn't mentioned the dog who is also in my care.

What are my legal rights regarding ownership of the cat?

 

[Rob Legat - SBPL]

Who is the executor of the estate?
When you say your younger son was given his 'choice of things', was that as part of his third, or as a specific bequest?
Is the residue given to the executor to divide in thirds between you, your son and your daughter-in-law? Or is there some other method nominated?

 

[Margaret Worsley]

Myself, the daughter in law, and one of my late son's friends are joint executor. The will specifically stated the estate was to be divided equally (by value) between my younger son, DIL and myself, however, the items specifically bequested to my son, DIL and myself, were to be included as part of our equal thirds. So if, for example, my son took items to the value of $5000, myself to the value of $2000, and the DIL to the value of $40,000, then that would be counted as part of our third, when it came to dividing up the funds in bank accounts, etc.

 

[Rob Legat - SBPL]

Okay. And if your younger son was given the power to choose the items he wanted, was your daughter in law given the same power? And, if so, was there any provision for determining the event where two beneficiaries wanted the same item?

 

[Margaret Worsley]

This is the exact wording (sans actual names).
1.1. to my brother XXX his choice of items from my toy collection, miniatures, DVD's and books;

1.2. to my wife XXX my (vehicle), laptop, televisions, electronic equipment, gymnasium equipment (that is solely owned by me) and all of my personal possessions;

1.3. to my mother XXX the unencumbered ownership of the exercise treadmill which we own jointly.

1.

I GIVE AND BEQUEATH the residue of my estate to:


1.1. my wife X;

1.2. my mother X; and

1.3. my brother X upon him attaining the age of eighteen (18) years;

in equal shares as tenants in common. I EXPRESS MY WISH that the specific bequests in clause 5 shall form part of the one third share to be received by the beneficiaries referred to above in clauses 6.1, 6.2 and 6.3.

There was nothing mentioned about two people claiming the same item.

As you can see, he made no mention of either of his pets, although, I am not sure if they constitute property.

 

[Rob Legat - SBPL]

Thanks for the information. Pets are property under Australian law, but figuring out how they are owned can be troublesome. If the cat is considered to have been owned 'jointly', it doesn't form part of the estate and automatically goes to the wife. If it's as 'tenants in common' then the cat does form part of the estate. This can be 'delicate' to work out, and can come down to who bought the cat, who looked after it, and so on. Since your daughter in law left the cat with you for three months and made no enquiry about it, that may give an indication unless there was some reasonable excuse.

As a 'rule of thumb' if everyone generally considers that it was your son's cat instead of 'their' cat, then it should be considered part of the estate.

If that case, there doesn't appear to be any specific bequest regarding the cat. Although your younger son gets a choice of items, the terms of the will shown make it clear that choice is limited to particular things - not including pets. It also doesn't appear to fall under any other specific bequests. This means the cat falls into the 'rest and residue' pool. Since you, your daughter in law and the friend are joint executors, you'll need to make the decision together as to who gets what. Fortuitously there are three of you, so a simple vote can decide it. But there are other ways to go about it: discuss it and come to a consensus, make the decision based on who can best look after the cat, determine who does have the greater emotional investment, or even letting the cat decide.

 

[Margaret Worsley]

Thank you for your reply. I will discuss it with her, and try to negotiate first. But at least I now have a better idea of where we stand. Thank you again.