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Writing wills/care of DS if worst happens.

(15 Posts)
MrsRajeshKoothrappali Sat 14-Sep-13 18:42:48

DP and I are buying our first house together soon and it has been suggested that we write wills.

Something I've been meaning to do for ages (please don't flame me for not doing it sooner).

DS's biological father is elsewhere. Was last seen about 8.5/9 years ago. Has dodged contact (got a friend to tell me he was dead so I wouldn't call) and only pays minimum to CSA and is hundreds in arrears.

DP has brought DS up. DS calls him dad. He's an awesome father and they get on amazingly well.

I need to ensure that if I die DS will be allowed to stay with DP. He's 10 so old enough to say 'this is my dad'.

Is there any chance that DS would be sent back to my ex (who he doesn't know and hasn't really met)? This really bothers me. My mum once said she'd fight through court to ensure that didn't happen but it still worries me.

Is there a way that I can have DP named as a legal guardian? We've been together just over 9 years, so not a new relationship.

What do I do?

Thanks!

smile

Fishandjam Sat 14-Sep-13 20:22:53

Get some professional legal advice?

Sorry, not immediately helpful I know, but I think in this case you need assurances on what the best course of action is. A decent family solicitor would probably give you 30 mins worth of free advice, on the assumption they (or one of their will-writing colleagues) would get some money out of you later.

ItsaTIARA Sat 14-Sep-13 20:33:08

I also think this is a situation where actual legal advice is required. Have you considered DP adopting your DS? (Don't know how realistic this is but it would solve the problem definitively).

NB that your son should make a will disinheriting his bio father when he turns 18.

specialsubject Sat 14-Sep-13 22:00:19

also if you marry in the future the wills will be negated, so bear that in mind too.

MrsRajeshKoothrappali Sun 15-Sep-13 07:46:37

We don't really want to get married.

We did chat about it but a friend recently got married and had to go through a hideous interview with his future wife to 'test' them on how well they know each other.

That really put us off.

chickensaladagain Sun 15-Sep-13 07:55:06

Does your child's father have parental responsibility?

If your child is 10 then he would have had to apply for it, even if he is on the birth certificate

If not it is highly unlikely that he would get any say if you died without a will

Also once a child reaches double figures then what they think/want is given massive weighting by ss & the courts

A will would put your mind at ease and make the process much less complicated but your dc staying with your current partner is the likely outcome in any case

MrsRajeshKoothrappali Sun 15-Sep-13 07:57:59

We were married when DS was born so I think he automatically has parental responsibility. I have no idea where he is though and no idea how anyone would find him.

chickensaladagain Sun 15-Sep-13 08:06:28

Ah if you were married then he does

MrsRajeshKoothrappali Sun 15-Sep-13 08:18:38

But would it be taken into account?

He's had zero contact for years. Has apparently moved on, has another wife and more children.

He pays £5 a week in child support through the CSA which I'm thinking about stopping so that all ties are cut.

round2 Sun 15-Sep-13 08:51:59

You can name him as a guardian in the will if you were to pass away. If it went through a court they would look at the situation /what's best for the child, bearing in mind he hasn't had contact for years, I don't think they would put a child with somebody they don't know. Also your son is of an age where they can talk to him and ask his opinion. With adoption I do believe you have to contact the father for permission which sometimes it may be best to let sleeping dogs lie.

lottiegarbanzo Sun 15-Sep-13 09:00:53

Also consider what if you both died. You need to name people who'd be guardians then and make clear they take precedence over the father. Your DP needs to say the same in his will. Horrible but, just consider you're both in a car crash, one dies first, their will comes into effect, then the other dies a week later. Anything passed from the first to the second person is then subject to their will.

hermioneweasley Sun 15-Sep-13 09:03:13

Agree this is a situation where I would be seeking proper legal advice. I think your DP can get PR even if the bio dad is around and also has PR, but please get proper advice!

prh47bridge Sun 15-Sep-13 17:43:11

I'm afraid you cannot give PR to your partner unless you are married. Even then you would need your ex's consent as he has PR.

prh47bridge Sun 15-Sep-13 17:43:55

That doesn't, of course, stop you from naming your partner as guardian in your will. But you really need to get proper advice.

mumblechum1 Mon 16-Sep-13 08:17:55

OP, as prh47 says, you can't enter into a parental responsibility agreement with your partner unless you are married.

You can, of course, appoint him as a guardian for your son in your will but this is not binding on a court if there's a dispute.

I'm a will writer and frequently come across this problem. The best way to go about it is to appoint your partner as guardian and state that your wish is that this is respected even if the child's father is still alive. You can state briefly the reason (ie that the child and father have had no contact since he was one year old and that he has a close and loving bond with your partner). Sometimes it's necessary to write a separate letter to be held with the will (then destroyed when the child is 18 to avoid any unnecessary upset when the testator dies) explaining in more detail why the natural father shouldn't have the child living with him, for example referring to court orders dealing with previous disputes.

In the extremely unlikely event that you died before your son is 18, and a dispute arose, ie your ex made an application for a residence order under the Children Act, then your expressed wishes in your will would be taken into account, but as I say, the court ultimately has the power to make whatever order it feels is in your child's best interests. If at that point there has still been little or no contact with the natural father it is extremely unlikely that the court would grant the father a residence order.

As a side issue, if you do marry your partner, your will is normally revoked automatically but I usually write in a clause stating that the will is made in contemplation of marriage and that it will apply whether you later go on to marry or not.

Please feel free to PM me for any further info.

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