AIBU to say DC can’t live with BIL in my will /guardianship arrangements

[olafstwigarm]

I am updating my will - mainly because there has been a change of address and I wanted to change something else small.

But in doing so I realised that at the moment my MIL is in my will as the person who would get custody/guardianship of my DC if somehow DH and I both die. She lives in her home with her other son ( BIL).
BIL is almost 40, no relationship, no job, plays computer games and throws the controller at the TV if he loses, punches walls, spends all day doomscrolling. He reports to not be neurodivergent - “doesn’t believe in that BS”. Oh and still lives with his mam.
(And before any one points out how hard it is to buy a home these days - true! However he and the other siblings (including DH) received enough inheritance from a grandparent to be able to buy a home, so not moving out is a matter of choice/ laziness. Or maybe he has spent it all - either way a choice.)

Anyway, this week BIL proudly announced to everyone on social media that he was in his own words “extreme far right”. He fully supports C Kirk’s views on everything (despite living at home with his mammy). BIL announced he is ready to go to “war” against the left. I have seen this guy punch hole in a wall over someone taking the last roast potato - so who’s telling what he will do this rilled up.
He publicly told a well loved local GP (who is not white) that he was a DEI hire and that he took our jobs.

Our views are very different. Our DC are not “white British” (although truth be told, nor is BIL but apparently no one is allowed to point this out).

My DH agrees with me that our DC can’t live in a home with BIL. Unfortunately there is no one other than MIL that we could put down as a guardian for them. My parents are in a care home. DH does have a sister who is quite sensible, however she has made clear to us she doesn’t want kids and to be honest when MIL dies and BIL has no one to cook him dinner and replace the TV when he throws a Xbox controller at it, I imagine he will probably move in with her too so same problem there.

MIL and SIL have views which align with ours more and aren’t aggressive wall punchers.

Could we reasonably put in our wills that whether MIL or SIL have guardianship of our DC can only do so on the basis that BIL does not live in the same house as our DC? Is there a way to word this that doesn’t make us sound unreasonable from beyond the grave?

My husband and I are both quite young, well and have no plans to die (famous last words🤣)

Its this being 'taken aback' that makes me worry for you and your kids tbh. Its the same attitude as the idea of applying conditions when you don't hold the upper hand in this situation.

Families dynamics are difficult. A mother will very probably choose her own son over her grandchildren. With grandparent carers, there are often stipulations from social services that the grandparents don't allow their son/daughter (the biological parent of her grandchildren) into the home if the children are present if they are deemed to be a high risk to their own children e.g. hard drug users. Grandparents very rarely honour this agreement and its impossible to enforce. Its one of the real problems social services have when a grandparent becomes a primary carer. Its still preferable to having the kids in care though.

Did you make it explicitly clear that she'd have to boot her own son out of his home in order to take your DC in?

If not, then of course she was happy.

If you did and she was still happy, what's the issue?

in an earlier comment i mentioned that when we initially agreed the first will (will1) everyone believed that BIL was moving out, he was also not noticeably racist back then. When we made will1 MIL had told him she wanted to sell her house and downsize. BIL was just looking for a place. This went on for years. She got the house ready to sell 5 years ago. I’m not sure what happened but imagine BIL doesn’t want to leave home.

You don’t need to worry for me and my kids. I’m not dead and nor is my husband. We are both well and are clearly taking steps to establish a suitable/ willing guardian for our kids in the unlikely event that we both die.

Surely the way forward is to make it abundantly clear to your MIL that you require her to kick her son out so your kids can take his place?

See if she’s happy to do this.

Problem solved.

I have an awful brother too, and I'm a single parent. While my DS would have gone to his Dad if I died when he was young, I did write into my will that I didn't want my brother to have guardianship if my ex pre-deceased me, or died when my DS was still a minor.

My solicitor told me it wasn't binding, but could have been used if my DSs Dad died after me.
My brother is a nut, he may have thought he'd get paid to bring my son up, or at least would live in my home for free, and try to burn through my life insurance policy.

I also appointed trustees, friends of mine, who would have looked after DSs inheritance from me, without expecting them to bring him up.

I think you're being totally reasonable to want to keep your kids away from their uncle, and I think their grandmother and aunt should respect your wishes if, god forbid, anything happened to you and your husband. Of course the wellbeing of orphaned children comes before a parasatic middle aged man.

My DS is now 24, my mum died last year and my brother finally moved out of home at at nearly 50.

What you put in your will about care for your DCs in the event of your untimely death is a wish and not legally enforceable. By all means put in your wishes.

Yeah i cant imagine this will actually happen sure you can say what you want but you can't control other people like that i dont think it works that way legally

Exactly @Shinyhappypeople43 If you feel that your children wouldn’t safe with someone, it’s better to state that than put them in a potentially dangerous situation-in the unlikely event that you die before they’re grown up.

I think that asking your MIL or SIL to kick their son/brother out is unreasonable. Your kids are family, but so is he. Regardless of his views, a lot of people have trouble closing the door on family like that.

You would probably be better off looking into alternative guardians for your children. We are the second option guardians for a couple we’re friends with (behind another couple we’re all friends with) - her parents have health problems that would prevent them from taking on their grandkids, her sister is child free with no intentions to have full time care for kids ever, her 2 brothers are not ideal role models (plus one works in the mines), they’re no contact with his mum, he has a strained relationship with his dad, and he’s an only child. Friends were their only option.

It's a really important matter you're grappling with, so you def need to sort it. Your BIL sounds vulnerable. He is def suffering a mental disorder - it may be neuro diversity but could be something else since he's now 40yo.

I wouldnt want my dc brought up in that environ. Your poor MIL. She needs to kick him and his sorry ass out.

Do you have any good friends or other relatives - cousins etc? If you dont then def stipulate what you have and annex your concerns ref your BIL to the will so it is clear to everyone who has access to your will.

In this situation I would actively name friends as first and second options.

And I would state that you have explicitly excluded mil (by dint of her living situation with bil) and sil (by dint of her own request) as guardians but that you would expect any guardian to support regular contact with them.

I feel that the conversation with DH will be a lot easier if it’s would you want X,Y or Z for the children. Rather than “I don’t want your mother”

I also wouldn’t try anything like “mil if bil isn’t living there” as this will be impossible to police and even if he moved out, he is likely to boomerang back.

Its not uncommon for people to choose friends instead (I’m in 2 families wills), often due to age of parents (my kid’s grandparents are excluded in mine for this reason)

You can suggest guardians, and suggest who you do not want to have contact with your kids (and give reasons why) but ultimately social workers or the courts would decide where your children would go.

People often talk about “appointing” or choosing guardians in their will, but that’s misleading.

We have a few close relatives that we absolutely would not want our kids to go to, so our will includes a statement about our preferences and reasons, but we know that ultimately we don’t control that.

Ah sorry to hear that. Sounds like you did a great job putting plans in place for your child and I’m glad to hear he made it to adulthood without the plans needing to be used.

Yes parasitic is exactly it. He believes women are mentally inferior and should not be allowed go to university- yet lives with his mum who provides everything for him and is a university lecturer.

We will have a chat to some suitable friends. And good to know reasons for not wanting BIL to be involved is a good thing to put in the writing. Thanks

You can request a family member to care for your children but cant force them to make certain changes in their own lives. Better ask someone else.

You need to take legal advice about this. It’s too complex to chat through on Mumsnet. Even though everyone is well intentioned you need good solid legal advice from a wills and probate solicitor with experience and good reviews . Also you need to talk to your mother in law about it.

Thanks. We used a good solicitor last time and I was hoping I could just ask her to swap out the names without having to fully redraft. But you’re probably right ill ask her.

the more you update the more I don’t think MIL is a suitable guardian for your children. Even if she did kick her son out, she wouldn’t go no contact and your children would be around him all the time. And who would the children go to in her will? I’d really explore other options.

We are immigrants so have had friends as guardians for a decade now as we want our children to stay in their country (they were born here). We initially had a friend a couple hours away as we really align with their parenting styles. My daughter asked me to change it recently as she’s in high school now and wouldn’t want to move (obviously she doesn’t get a decision but she does get a vote). So it’s now friends in the same school - nor entirely similar parenting styles but they love their kids and will look after ours well.

Agree with this, esp as in the event of you both dying, MIL would have lost a son so is unlikely to be burning bridges with her other son.

your children are not your property - so you can't leave them to anyone in your will. Your wishes will be taken into account when it's decided what is the best solution should you die but you can't dictate. In reality, I think there are so many pressures on SS right now that I'm not sure who would safeguard your DC and ensure that your DB was not living with them.

We had a slightly different problem - my SIL was the obvious person to name - but she declined - said as her DC were older (only by a few years) she would not want to be held back by having younger DC again. That was over 30yrs ago and I've never quite got over that TBH. Faced with bereaved children she wouldn't step in - it changed my view of her.

My own family were not geographically close - my DC would have to change continents to live with them - so I asked a good friend who was a single parent to 2 DC that mine got on really well with (went on holiday together, they came to us at Xmas etc). We had a reciprocal arrangement whereby we would have her DC and she would have ours. All of our DC grew up knowing this, that if anything happened to their parents they would be able to stay in the same area and go to the same school, keep their pets etc.

Of course it was never needed - but it was the best solution.

I think you’re focusing on the wrong thing with this will. You can express who you’d ideally like your DC to live with, but that’s not necessarily what will happen if you both die. Circumstances change, your MIL may become unwell, your Dc may not want to live with their grandma, any friend you name may well change their minds.
What you need to focus on is who will manage the DCs inheritance. How old is your DM and DC?

Yes but this is all entirely theoretical. I just don't think you need to be planning to this extent of details and forcing MIL to say "yes I will kick my son out of house when my grandson's parents are dead".
Just either ask a friend or just relax about it all. One option is to just say that whomever looks after your son can stay in the house until he is 21. That's what I've written. Then you'd be asking MIL to move rather than DS to move.

Unfortunately this is going to involve a bit more drafting and be more expensive I’m sorry but you need to get this right. If you send her an email having done your Will previously you will probably get the advice free but this is likely to be a more expensive will to draft. Worth a call or an email first though ( this used to be my job).

How far are you willing to take this? What if MiL says no to kicking her son out over your kids? Would you rather they go into care?

BIL wouldn’t be my cup of tea but if it’s a home with family or care- it’s family.

Doesn’t have to be a family member, what about a close friend?

Also I’m pretty sure you can’t will a child to somebody, at some point a court will need to give them parental responsibility, at which point if any of your family members are incapable or unwilling, that will come out.