Divorced parent wills for appointing legal guardians of under 18 year olds

[ColdToTheBones]

My ex has an awful sibling who I have always lived in absolute fear and dread of having legal guardianship of my children. He's changed his will and named this sibling as his choice.

I obviously intend to make my own will with a different choice of my own, but what actually happens if it comes down to it? Like, if in some freak of nature we both die at the same time. Unlikely to happen, I know, but....

I also assume nothing can happen for as long as I am still alive? I wonder why there is even that clause... can the nominated person contest guardianship over a surviving parent.

I'm feeling twitched because I'm hearing scare stories about somatic abuse partners having access to their children, even if the abuse was against said children. I'm starting to feel like nothing is going to be okay and I rest hope on this matter it's unfounded.

It's amazingly unlikely that two people who no longer live together would die in the same accident.

In that extremely unlikely event (or if you died young and your ex died for unrelated reasons a couple of years later) then the only thing you can do is pick a preferred guardian who makes objective sense and is known and ideally related to your DC, and write an extended letter to be filed with your will explaining exactly why ExBIL would be an unsuitable guardian and why your choice would be preferable.

Children are not possessions to be bequeathed in a will - you can express your desire for their residence after your death but it can be readily overridden by family courts if the surviving family do not agree that your wishes are not in the DCs' best interests. You should insure than in the unlikely event that the worst happens the courts, and your relatives, are aware of all the reasons why BIL would be an unsuitable choice.

*ensure not insure

The legal position is that neither appointment of a guardian takes effect until you both die. If you both die, both appointments would take effect. If they both wanted to look after your children it would be up to the courts to decide what was in their best interests.

Thank you - this is really helpful.

If you both died at the same time I'm sure SS would step in and appoint a guardian. Your BIL can't just take them.
If the kids are old enough their opinion would be taken into consideration, but I'm sure all appropriate family members, or even friends would be considered too.

NB if you died before exh, anything in your will would be irrelevant. The kids would go to their father and then his Will would prevail in the case of his death.

If Exh dies before you, there's no problem.

@Justkeeppedaling

If you both died at the same time I'm sure SS would step in and appoint a guardian. Your BIL can't just take them. If the kids are old enough their opinion would be taken into consideration, but I'm sure all appropriate family members, or even friends would be considered too.

NB if you died before exh, anything in your will would be irrelevant. The kids would go to their father and then his Will would prevail in the case of his death.

If Exh dies before you, there's no problem.

No, Social Services wouldn't appoint a guardian. The children would already have two guardians - those appointed in the wills. If there was a dispute about who the children lived with, it would be decided by the courts, not Social Services.

It is completely wrong to say that the OP's will would be irrelevant if she dies first. The children do not automatically go to the father. If the guardian appointed by the OP took the children in, he would have to go to court to get them and the courts would decide what was in their best interests. And, even if they did go to him, his will would not prevail if he dies. The children would then have two guardians and, if necessary, the courts would decide which one they live with.

@ColdToTheBones - I forgot to mention that, if you have a court order stating that your children live with you, your appointment of a guardian would automatically take effect on your death, even if your ex was still alive.

@prh47bridge

That's interesting, it's completely the opposite to what the lawyer told us when now-ex made his will and wanted to appoint me as guardian to his child, I didn't want to be guardian with his ex wife, the lawyer told us the guardianship only came into effect if the mother was also dead. We still agreed he would put his sister though.

[quote VanGoghsDog]@prh47bridge

That's interesting, it's completely the opposite to what the lawyer told us when now-ex made his will and wanted to appoint me as guardian to his child, I didn't want to be guardian with his ex wife, the lawyer told us the guardianship only came into effect if the mother was also dead. We still agreed he would put his sister though.[/quote]
Perhaps I'm not explaining myself clearly.

In general, if he appointed you as guardian it would not have come into effect until both he and the mother were dead. However, if he had a court order saying that the child lived with him, the appointment would have come into effect immediately on his death even if the mother was still alive.

Ah, right. There was no court order for where the child lived, but he lived with us, though the mother was technically the resident parent and got maintenance.

As far as I understand guardianship of the child defaults to the other living parent unless the deceased parent had a residence order in their favour and had appointed a guardian.

For example, I have a residence order and if I die DC will go to care of the guardian I have appointed even if Ex remains living. If ex disagrees he has to challenge this. The executor of my will has a sealed letter to open in the event of my death with explains the full facts of why DC should not be in the care of her Father. My executor knows my wishes and that they will need to help broker the best outcome for DC.

In the vanishingly unlikely scenario we both die at the same time, any guardian he has appointed would need to challenge the guardianship outlined in my will. The courts would have to look at it and make a determination in DC best interest.

If you don't have a residence order then it's possibly one that needs legal advice.

@Pinkyxx

As far as I understand guardianship of the child defaults to the other living parent unless the deceased parent had a residence order in their favour and had appointed a guardian.

For example, I have a residence order and if I die DC will go to care of the guardian I have appointed even if Ex remains living. If ex disagrees he has to challenge this. The executor of my will has a sealed letter to open in the event of my death with explains the full facts of why DC should not be in the care of her Father. My executor knows my wishes and that they will need to help broker the best outcome for DC.

In the vanishingly unlikely scenario we both die at the same time, any guardian he has appointed would need to challenge the guardianship outlined in my will. The courts would have to look at it and make a determination in DC best interest.

If you don't have a residence order then it's possibly one that needs legal advice.

Your first sentence is wrong.

Imagine there are no court orders in place, but the child lives with mum and stepdad. Mum dies leaving a will appointing stepdad as guardian. If biological dad does not have PR, stepdad is now the child's guardian. Biological dad will have to go to court if he wants the child to live with him or someone else.

If biological dad has PR, stepdad is not the guardian, but the child will continue living with him (unless he chooses to hand the child over to biological dad). If biological dad wants the child, he will have to go to court.

In both cases, if biological dad goes to court, they will decide based on the child's best interests and taking into account the child's wishes. The court will not automatically give the child to biological dad just because he is biological dad.

@prh47bridge the point I made reflects the legal advice I was given in a situation where both parents have PR, and I have a residence order. Not all parents re-partner.. I have no partner. I was advised that if I did not appoint a guardian, then guardianship would default to my ex husband as the other parent with PR. In other words the determining factor is the appointment (or not) of a guardian. Sadly not everyone makes a will or considers these things.

Since I do have a residence order and have appointed a guardian, if I die our child will be placed in the care of the guardian I have appointed. If my ex-husband disagrees then yes he will have to go to court and the court will look at what is in the best interests of the child.

@Pinkyxx - I understand that and did not dispute the majority of your post. And the advice you were given as to what would happen if you didn't appoint a guardian was correct. However, your first sentence said that you need to appoint a guardian and have a residence order to prevent the child going to the other parent. I was pointing out that the "and" in that sentence is incorrect. Even without a court order saying that the child lives with you, your appointed guardian may be able to prevent the child going to your ex.

@prh47bridge I can only speak to the advice I received from a family lawyer which was that both were required to prevent our child going to my ex and to require him to challenge that outcome should he disagree with it.

The advice you would have received would have been specific to your situation. And I would certainly recommend both naming a guardian and getting a court order saying your child lives with you. I'm simply pointing out that, even if you didn't have the court order, the person you appointed as guardian may have been able to prevent your ex taking your child.