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Wills & legal guardianship.....

(6 Posts)
london11 Tue 12-Aug-08 07:29:40

Does a will over ride parental responsibility that is all ready in place?

A bit of background......ex step mother has a terminal illness and has put in her will that my sister's (12) guardian is to be my step mothers husband (my sisters step dad). She has yet to inform my dad (also sisters dad) of this. So will what the will states over ride my dad's automatic parental rights?

PortAndLemon Tue 12-Aug-08 07:46:29

Does your mother have a residence order in her favour?

If she does, then I think that (unless your father contests it and applies for a residence order) your sister's stepdad would become her guardian and would share parental responsibility with your father.

If she doesn't, then I think the appointment of your sister's stepfather as guardian would only take effect on your father's death (or on termination of his parental responsibility).

But I'm not an expert by any stretch of the imagination. Your father really needs to consult a solicitor to find out his legal position. What would your sister want to do? If it comes down to a legal fight her wishes are likely to be a major factor at her age.

london11 Tue 12-Aug-08 07:57:18

AFAIK step mother and dad share custody of my sister but I am not sure about any residence orders.
Will advise dad to seek legal advice but am so caught in the middle trying not to get involved
I think my sister might choose to stay in family home with step dad, which will be very hard for my dad to accept

Freckle Tue 12-Aug-08 08:05:35

As I understand it, a court would grant custody to a surviving parent unless there is evidence that that parent abandoned the child or is an unfit parent. If your stepmum really believes that the child's stepfather is the better person to raise her, she could write a letter of explanation which is placed with her will and read to the court in the event of a dispute.

Does your half-sister have any siblings in the family home? That might be a factor as courts do like to try and keep siblings together.

Hulababy Tue 12-Aug-08 08:31:54

Who has parental rights over your sister?

The wishes pput in a will regarding guardianship is not legally binding. It just gives the courts, should it be challenged, an idea of what the deceased persons wishes were. But a court will look at the whole picture and award custdy to the person they feel is in the child's best interests. At 12y your sister's wishes would also be taken into consideration.

london11 Tue 12-Aug-08 09:36:47

my dad and step mum were married when my sister was born in 1996 and all names are on her birth certificate so I believe both mum and dad have parental rights for her.

There are no other siblings at home.

The letter with the will is a good idea....I take no particular side regarding who should have guardianship but will help my sister to express her wishes and try to ensure she ends up happy.

Thank you all for your advice.

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