Brisbane’s Legal Lowdown: Taking care of your pets after you’re gone – planning for your pets in your Will

Carla: Welcome back to 4BC Afternoons. It is time for this week’s Brisbane legal lowdown with Attwood Marshall Lawyers. Today, we’re going to be talking something a little bit different, and for many of us close to our hearts, our pets.

Now the world was saddened to hear the passing of Hollywood icon Diane Keaton on October 11th. Now stories of her passing were in every news outlet, not just because of the incredible legacy that she left behind, but also what she left behind for her golden retriever, Reggie. Now, there are some reports that say she’s put aside $5 million dollars to make sure that he’s looked after and to continue supporting the animal charities that she loved.

It’s a gesture that’s made a lot of people stop and think what would happen to our pets if something happened to us. And to talk about this, we’re joined once again by Attwood Marshall Lawyers, Estate litigation Senior Associate Duncan MacDougall.

Before we start, do you have a favourite Diane Keaton movie?

Duncan: Well, I do remember, topically, is this one about a dog where she goes and rescues it. I think it’s called My Darling Companion. I remember watching that when I was a kid and be more fascinated by the dog. But yeah, I know she’s an amazing actress.

Carla: The premise of that movie, My Darling Companion or Darling Companion, is that she realises that she loves her dog more than her husband. And then that her husband is blamed for the disappearance of the dog whilst on holidays. I think of Father of the Bride, First Wives Club. There’s so many great films that she’s been in.

But obviously, sad to hear of her passing, but stories like Diane Keaton’s passing, you know, it captures people’s imaginations and attention because in like, leaving $5 million dollars behind to look after a golden retriever seems excessive, throw in the fact that she’s also, you know, making an animal charity a beneficiary as well. But how common is it for people to leave, you know, things behind for their pets?

Duncan: Yeah, it’s a topic that a lot of people would be surprised at. I’d say it’s more common than not these days where the pet definitely comes in during that conversation, when you’re with your solicitor saying well, wait a minute because as you go through your estate planning, you realise you get a bit of an understanding of what everything you own is, and all of a sudden topic comes to mind, well, what’s happening to the kids? What’s happening to the pet? So yeah, we definitely see it. And I think our views towards pets are changing as well. They’re not just treated as property, but members of the family.

Carla: Yeah, definitely. And obviously, like recent years, you know, changes to tenancy and rental laws to make sure that, you know they don’t disclude or discriminate against people who have pets. And then also I note that, you know, pets are being looked after, you know when people move into aged care and they need somewhere for their pets to go, there and our services in place so those people come and foster and adopt and bring them in. And it’s very sweet, but it’s obviously growing.

Duncan: I saw recently as well down in Victoria, where there was reforms that now you can be buried alongside your pet in the family plot. And just more recently…

Carla: Hang on. You mean your pet can be buried alongside you.

Duncan: Correct.

Carla: Okay. It could be the other way around, I guess.

Duncan: It could be the other way around.

Carla: It is strange that we have this conversation, but obviously it’s very common, more common like you said, than we think. From a legal perspective though, can you actually leave all your money to your pet? I mean, they don’t have opposable thumbs, like I am thinking of my dog, let alone access to …

Duncan: Yeah, a lot of people have see, well, they, they hear that in the news and they say, well, wow, how does a dog. Yeah, exactly. A pet and an animal doesn’t have legal capacity, obviously, so it really, it’s when people do leave money when they say they leave money to their pet, it’s usually in the form of whether it be a trust that’s managed by somebody to deal with making distributions for ongoing medical vet bills, food, accommodation, whatever it might be. Or there might be any sort of legacy gifts to certain individuals. I make this gift to this person, provided they make there’s a specific wish whereby they direct them to care for the dog.

So there’s something a little more formal that can be put into place where by these trusts, if you want a little more, or less formal, you want just simply somebody there mentioned to make sure that they’re the person who’s going to take control of the pet after your passing, you can put an appointment of a caretaker or guardian for your pet.

Carla: But how can you know if your wishes are fulfilled?

Duncan: Well, upon your passing, your estate is going to be administered by your executor. The person who slots into your shoes when you pass away, responsible for collecting all the assets. Technically a pet is a piece of property of yours, so they’ll be responsible for dealing with it. Now if there is no direction under a will or a letter of wishes alongside that will, then really, it’s up to the executor about what happens. So, there’s a lot of uncertainty where there is no direction to an executor and then it’s left to the executor to decide, well, what do I do with it?

Then we see them going off to making donations to an animal welfare league, for example, or on the worst-case scenario, taking steps to euthanize the pet.

Carla: It’s horrible and it’s like, and it’s weird thing that I would never have even thought to bring up, but there, there are ways, effective ways that someone can plan for their pets in their estate.

Give me some of the most effective ways that you can make sure that your wishes are adhered to if you have a furry friend or a scaled loved one, that you will leave behind?

Duncan: Yeah. So, there’s a few options there. It depends on the extent of it. I mean, we might not have millions of dollars like Diane Keaton, but there’s certain things that you can set aside some funds to assist with that care. Have a trustee manage those funds and deal with the care of that pet. Whether you make a specific gift to that person, again as I mentioned before, you may even go to the extent I’ve seen people before where they give a right of occupancy for a person to access an estate property for a specific time and under certain conditions until the dog has to go into other care, or until it passes away, it allows somebody independent to come in there, care for the dog whilst the dog is still residing in this property.

Carla: Oh my goodness.

Duncan: But it’s very important to make sure it’s very clear and specific in your will in terms of those terms, even going to the extent of being very specific about the pets that they do have. I recall one lady who I prepared a will for had ten different cats and she was very specific on where each cat went. So, it’s very important to have a description about their microchips, their registration numbers, a description of the animal themselves, things like that, so that’s it’s easier for the executor to properly identify and make sure that the deceased’s wishes are fulfilled.

Carla: Wowser. Alright, for those of us who may not have family or friends who would step in and step up to the plate to look after ten cats, my lord, are there any organisations that can help?

Duncan: Yeah. And that’s the other option as well, whether or not maybe there’s no legacy provided to them or any sort of trust provided for these pets, it’s simply I want this pet donated to the care of these organisations, one that comes to mind is the Animal Welfare League. I know they’ve got a legacy program where they can register their pets that upon their passing an executor can be in contact, the pets already registered with them, so that they take care of the pet from here on out.

And if pets are near and dear and everything else, and there may be even distributions to a charity that specifically honours things, that that you hold dear to you about, or maybe something that you’ve been involved with previously in terms of your animal. So yeah, there’s all sorts of ways where you can get around it and make sure that your furry loved ones are cared for.

Carla: Obviously the information would be available within the will, but I wonder if there’s like an option to have that information stored in the microchips or whatever.

Duncan: Absolutely. Yeah. And that can sit either alongside the will or otherwise. Sometimes all these informal instructions can be outside of a will where these descriptions or otherwise, at least there’s somewhere where the executor can have access to that.

Carla: And identify it. Wow. Alright, lastly, we often talk about when someone passes away, what happens after that? But like what happens when they become unwell or lose capacity? What happens in those instances when they can no longer look after their pet, but they haven’t passed away yet?

Duncan: Yeah, we see that often as well, where some elderly clients, their pet becomes their new child. It’s a new companion. It’s somebody, the family have all gone their separate ways, and they’re the ones that that they see day in and day out.

But upon their loss of capacity, or they just can’t manage that pet anymore, some options you can include is under your enduring power of attorney, where you’ve appointed attorney to manage your financial affairs, direct them to put aside certain funds or direct them to account for these ongoing vet bills, any sort of food, accommodation, things like that for your pet.

Carla: This is fascinating stuff. Have you ever had to look after a client who has asked to be buried with their pet?

Duncan: Not personally, no, but I know it’s becoming a topic, a conversation because I think it was New South Wales who introduced it first and then shortly thereafter, Victoria.

Carla: It is fascinating. Your job is super interesting. Duncan. Thank you so much for coming in. Duncan MacDougall, Attwood Marshall Lawyers, Estate Litigation Senior Associate. Fascinating stuff. And if we’ve got pets, they’re just like family members. Make sure they’re looked after in many ways.

Duncan: Absolutely.

Carla: Thank you for your time. We’ll see you next week for the legal lowdown.