WWYD How to protect child in will if ex might challenge custody?

[Willplanninghelp]

So I separated from my ex when it came to light that he was a danger to children. We share a small child who he currently has no contact with. There is a police record of the investigation but no conviction, social services aren't involved because there's no contact happening.

I want to do everything in my power to ensure our child goes to my sibling if I were to die and doesn't go to my ex because I know he'd be an unsafe option. I'm going to draw up a will but trying to work out what's the best arrangement.

In my will I intend to make an expression of wishes for who our child goes to. But I'm also conscious that if my ex decides to challenge my sibling that could leave them in a difficult financial position with legal costs. My ex is in a somewhat better financial position than they would be so part of me is thinking I should leave what I have to my sibling on the agreement its used for anything our child needs and to use for legal costs. I also don't want to financially incentivise my ex to seek custody though i don't think leaving inheritance to my sibling would put him off either.

The downside to this is that outside of a child's savings account, that would be my child's full inheritance and if my sibling passed away then that money would go to my nephew and my child would be left with very little. I'm not talking massive amounts here but enough that would help my child get started with a first home for example when the time came. Plus if my sibling and their partner split then presumably her partner could take some of that money for himself and my child would never see it. As a couple they seem fairly solid but it's also only been a few years. I'm not in bad health as such but overweight and could definitely be healthier so no urgent worry just trying to be pragmatic about planning.

So my question is what would you do if you were me?

YABU: Leave it to your child entirely, you may live to old age anyway and too many variables if you leave it to your sibling that would disadvantage your child unfairly long term

YANBU: given the serious concerns with your ex and how expensive legal fees are leave it to your sibling to help protect your child.

Or somewhere in the middle and if so what would that look like?

I think you need to seek legal and financial advice because I would imagine some form of trust would ensure your estate went to your child while denying your ex access to it.

Yes I could do that, but I guess it still would potentially leave my sibling in a difficult position because doubtless my ex would challenge residency in court which my sibling would then have to pay for ?

A trust accessed at a particular age, a percentage given to your sibling for the raising of your child. There could be another option, so.worth getting legal advice.

I need to do my will, single mum,.Court saw fit to give day3/14 nights. I need to do similar to you, so interested in how it all works and if there are other suggestions.

I really don't know how it would work out I'm afraid, a solicitor would presumably help you make your will & guardian for your child as water-tight as possible and advise how best to prepare for the possibility of your ex challenging it. I suppose you could also specify a certain amount of £ is made available to your sister for fighting his legal challenge but it's really not my area :/

I’m a private client solicitor and review planning like this on a daily basis. I would seek professional advice on this but what we would not recommend is leaving something to someone for the benefit of others because of the risk you state , there are also lots of other risks of doing this for example them not using the money for your child , or just not being capable to manage it for one reason or another at the time. Regarding guardianship this should be formally stated in the will and not a letter of wishes preferably. The surviving parent with PR would take priority over anyone appointed in your will however if they are a danger to that child that decision can be challenged by the local authority or someone else for example and the child placed with the person more suited. I don’t claim to know about that process. The assets you are passing would also need to be looked at to see what would pass with your will and outside of your will. Further you may want to appoint trustees of your child’s inheritance. Overall in your situation a discretionary trust would be ideal. You may think that would cost an extortionate amount but it doesn’t need to. Shop around. Where I work it costs about £359 and it is so much cheaper than the alternative of your child losing out with improper planning. Find somewhere which is regulated by the SRA because any one can set up as a will writer and wouldn’t recommended going with them unless the reviews are amazing. Honestly it is worth it :) Hope you get sorted x

I think try to ask a lawyer about how to arrange the money.

Also ask a very family lawyer how to make sure your child gets the right person. For example you could maybe appoint a guardian. Make sure your sibling is extremely involved with your child and set up a trail of proof so there is every reason for a court to agree your child should continue to be cared for by them.

Thanks all, I'm meeting a solicitor this week who works alongside the solicitor who's been working with me so far and they've been really great up to now. I just wanted to get a bit of an idea in my mind, I guess, before going into the meeting to know what questions etc I'd need to ask or things to consider to try and make it as water tight as it can be without letting myself spiral in the process.

ah I’m so pleased you have a solicitor on board :) they will be able to reassure you and advise if the correct approach. Just ask them anything and everything so you can relax. Its not too complicated and they should be able to draft things up fairly quickly for you :)

Is there anything in particular I should be asking? I've never done this before and if I'm honest probably know less about it than I should at this age.

You need proper legal advice about guardianship and a trust for your DC.

If your solicitor is experienced then they should ask the right questions so they can tell you the right option for you. I don’t have an overview of your assets but what I would be recommending is either a normal will with an age of attainment in which says your son can have his inheritance at x age . That will would appoint guardians and the people you would like to look after any inheritance for your son before he turned the age you chose normally 18/21/25. Or if you think you would like the funds to be held for him longer than this then a discretionary trust would be more appropriate. This is a trust where the money can be held for much longer so the money would not be advanced to your son until the trustees are sure there are no risks to that inheritance , a discretionary trust can be useful but it is important to think about who you would trust to manage it. You can also appoint guardians in this type of will :) happy to answer anything further :), x

I'm not in your country, but some things that might apply.

Does your ex still have parental rights?

How can those parental rights conflict with the guardianship you're proposing? Can ex contest the guardianship?

Can you have a letter of explanation along with the will detailing why you're doing this? Can you reference the police investigation?

Ask about leaving the sibling a certain amount for court costs or an emergency fund if needed and the rest in a trust.