Will change without partner being involved

[Penelope41]

Hi everyone, although I’ve read mumsnet for a long time now this is my first ever post.
My partner and I have been together 20+ years, we did Wills together about 5 years ago to arrange things for our 3 children.
A lot has changed during this time, we no longer see my partner’s family nearly as much, I have seen through a lot of their past behaviour and decided not to be as involved and therefore neither has my partner also not bothered seeing them as much (his choice/ he’s free to see them whenever he chooses). Anyway, in our Will, if both my partner and I died, the children are left to my SIL. My children no longer see her very much and I would like to change it so my mum or my brother is left to look after the children (both my mum and my brother/and his family are more than capable and they see my mum multiple times a week as she helps with childcare). My partner and I have been going through difficulties for the last couple of years in our relationship and things are heading to a possible separation. My question is as we are unmarried (something my partner has had great pleasure in using to his advantage in separation discussions r..e finances) could I change my Will to leave children in the care of my family? My partner would not change his. Would they need to be the same agreement? Or as the unmarried Mother would mine take preference? Would I need to tell my partner I’ve done this?
Obviously it would only stand if we both died otherwise the other parent gets the children.
Any advice would be appreciated. Thank you x

IANAL

I don't think you can "leave" children in a will. You can express a preference as to who looks after them... I am.sure someone will clarify and I am not sure how it would work when two parents express different preferences. Assume also the children would go to their father if you die first.

That's a genuinely interesting question ... I don't know what would happen if you both died together but with differed wills ... it might come down to who died 'first' in the medical sense.

The best thing would be to discuss it amicably ... the last thing you want is to leave your bereaved children in a even worse situation. Also consider if the SIL actually still wants to be named as legal guardian?

It would come down to who died last.
And change that will ASAP, no need to tell him.

The kids would get a say where they go if they were old enough.

Yes, change your will. Get legal advice on other financial matters. Do this ASAP because he sounds vindictive.

You can change your own will to say that if your partner pre-deceases you then you want your mother or brother to be your children's guardians. If you die first though then your partner can say what he wants in his own will (ie SIL to have them). I've no idea what would happen if you both died at the same time and your wills said different things. If both sides wanted to take on guardianship then I'd think the courts would probably look at all parties and use the facts at hand to decide who was best placed to care for the children.

I'm guessing though that if you're likely separating soon then you probably won't be often in a situation where both of you are together and in danger of dying simultaneously.

If you both die together, eg in a car accident, the younger person is deemed to have died last, and so their will would apply. Change your will if you want to. Keep in mind that you are only expressing a preference, you can't actually " leave" children to anyone.

Wills are for property/ assets. As said above you can make a preference but it has no legal power.

If you pre-decease him his preference will be taken into account but again it's not binding.

If you die together- firstly the DC's will be with whoever has them at the time/who collects them from school. If another relative wants to involuntarily remove them from that person's care they will have to go to court.

(The exception is if there is a safety reason why one isn't suitable eg violent criminal history/ domestic abuse/ severe mental illness/ addiction)

The court will take into account the children's views and will try to keep them together. They will consider- prior relationship, enough rooms/ beds in house, other children in the house/ relationship with them, availability of primary carer, stability of relationship, any religious/ cultural issues, age, general fitness, parenting capacity and style, proximity to existing school and friends.

It will be decided on the facts of the case.

Or if one party has money for lawyers and the other doesn't it could come down to that.

If you really want your family have long conversations with them now and make sure they are aware of the above.

You cannot leave children to someone in a will. You can, however, use your will to appoint one or more guardians. You and your partner do not have to name the same guardian(s). Assuming he has PR, if you die first, any appointment you make in your will would not take effect until your partner dies unless there is a Child Arrangements Order in place at the time of your death stating that the children live with you.

You can put whatever you want in your will. You do not have to inform your partner. If you both died and named different guardians in your wills, both appointments would take effect regardless of who died first. If there was a dispute between the guardians as to where the children should live and they could not resolve it themselves, they would have to go to court. The courts would decide based on the children's best interests.

Being unmarried won't be relevant if he has PR

Assuming he does have PR , and you die, obviously they stay with him as their other parent. And what happens after he dies is up to him.

If he has predeceased you (and if he's older than you, he will legally be deemed to have died first if you die in same incident) then you as sole parent can 'leave' your DC to whoever you wish.

And it is very rare for those wishes to be overturned, though it can happen if the person nominated in the Will is unable to act in the role, is unsuitable for it, or if there's some sort of almighty bust-up. Rare, because conscientious parents tend to make good choices, and even though other equally good choices might be available, there's still a feeling that the parent will have made their choice for good (if unquantifiable) reasons.

Assuming he does have PR , and you die, obviously they stay with him as their other parent. And what happens after he dies is up to him.

To say again, the second sentence of this paragraph is wrong, as is the next paragraph. If the OP appoints a guardian and dies first, that appointment will take effect when the father dies. Similarly, if he appoints a guardian and dies first, that appointment will take effect when the OP dies. If the parents appoint different guardians and both die, both sets of appointments take effect. There is no question of the appointment by the parent who died second taking precedence. In that situation it is up to the guardians to agree where the child will live and other matters affecting the child. If they cannot do so, they will have to ask the courts to decide.

I'd imagine if you died first then naturally the children would see more of his family than yours there by supporting a guardianship by his family over yours. Sadly not much you can do unless the children are old enough to express a preference or unless you requested that your family fight for guardianship in the unlikely event of it happening. But you can't force them to

No, it would come down to what was in the best interests of the children.

As previously stated you can't bequeath people, but you can state a preference. Ultimately it will be up to others to make sure that this is the right thing to do. Family members may chose to fight your request in court.

Thanks everyone for getting back to me.
He does have PR.
I understand that if my partner outlived me he would arrange what he saw fit for the children.
We had Wills done 5yrs ago and it is listed in those that we wanted my SIL to have them which is why I assumed the children did get ‘assigned’ if you like to someone we’ve requested.
I feel reassured that it sounds as though it would come down to what is best for the children. That would be my mum as she currently has much more contact, helps and supports our eldest who is on the spectrum and adhd. My mum would be able to move into our family home etc and knows all three children far better than any other family member.
As our relationship is going through difficulties atm, my partner is unlikely to agree to this change on his Will -even though he would see it makes sense, but just because of sheer bloody mindedness!
It’s not a nice train of thought to have but I believe it’s better to have these things sorted as much as possible!
Thanks everyone