There are many fascinating stories that have evolved as a result of someone dying without a Will but despite most of these stories ending in broken lives and financial tragedy, there is still a reluctance by many to face up to making a Will.

But surely if this impacts on your children you would feel differently wouldn’t you?

Making a Will can be beneficial to your children in many ways, such as to provide protection of finances and financial support whilst your children are you, by using trust funds. What about who the children will live with if you are not around to care for them anymore, what happens then?

When making a Will you can appoint Guardians stating who you would want to look after your children upon your death. If you are living with the father or mother of your children then it is likely to be the case that you would want the children to continue to reside with them. However, if that parent were to die at the same time as you then provisions should also be in place stating with whom the children shall live in the absence of both parents.

If it is the case that you do not live with the children’s father or mother because your relationship has broken down, there may be good reason as to why you do not wish for the children to live with that parent if something happened to you. It is likely that the other parent will have Parental Responsibility for the children and therefore would have the right to request that the children reside with them.

However, The Court of Appeal has recently dealt with an appeal against an Arrangement where the child was ordered to live with her father following her mother’s death. The appeal was allowed on the basis that the child had been cared for by mother’s friend whilst mother was suffering prior to her death. The Court of appeal made it clear that there is no presumption in law in favour of the natural parent and it is the child’s welfare that is paramount. It was clear from the facts that the child’s needs would have been best met by the friend. The decision of the Court of Appeal is particularly significant to those where step-parents may be involved with the day to day care of the children as it could be that it would be in the best interests of the children for them to remain in the care of their step-parent as opposed to going to live with the surviving biological parent.

By appointing Guardians within your Will, you make your wishes clear as to who should care for your children upon your death. Whilst your wishes will not be binding on the Court if an application was made by the surviving biological parent, it would certainly assist either the step parent or other nominated person in making it clear to the Courts what you would want to happen for the benefit of your children.

At Thursfields, we have trusted advisors who will be able to advise and assist you in relation to all aspects of arrangements for your children during your lifetime and beyond.

If you are unsure whether someone has Parental Responsibility or what this means and would like to discuss this with someone please contact Helen Hanson on 01905 730467.

If you would like to make or amend an existing Will so as you can appoint guardians and make financial provision for your children then please contact Sarah Ingles on 01562 512469 or Tom Evans on 01905 730458.

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