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Help 4 years 10 months ago #61559

I today was left a voicemail meant for my ex wife she has been enquiring about getting a will. We are only just been divorced. Does anyone know what would happen to my son if she dies I'm assuming I would get custody as I have parental responsibility and see my son regular including overnight contact

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Help 4 years 10 months ago #61563

  • Mojo
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As you have PR you would expect to take over the care of your child in the event of the other parents death.

However she can use her will to ask for a n other to take over the care if she dies. I would think if that is tested in court, it would be overturned if the biological parent can show they have an established relationship with the child.

I'll ask Coram to drop in and give you some legal advice.
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DadTalk Moderator... I'm not legally trained and my responses are my own views based on my experiences of the family court. I have plenty of common sense and can offer you emotional support and guide you to answers.

Last Edit: by Mojo.

Help 4 years 10 months ago #61564

Thank you that would be great

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Help 4 years 10 months ago #61673

Dear Mr Pritstickman

Thank you for contacting us.

Firstly, as you have been married to the mother of your child then you will have Parental Responsibility for your child.
If the mother were to name somebody other than you to be appointed as a guardian for the child in the event of her death, this person would be known as a testamentary guardian. This appointment will not automatically take place on the mother’s death. The appointment would only become effective if there was no surviving person who had Parental Responsibility for the child. This means in practice that as you have Parental Responsibility for the child that on the mother’s death the appointment would only become effective on your death. If the surviving parent did not have Parental Responsibility for the child or were to die then the appointment would then take effect and this would grant the appointee Parental Responsibility for the child in question.

You should know that there is an exception to this if the appointing parent at the time of their death was named in a Child Arrangements Order as the person with whom the child was to live. Therefore if the mother was named as the resident parent in a Child Arrangements order then the appointment would take effect on her death. You could still however challenge where the child is to live by applying for a Child Arrangements Order yourself. If there are currently no orders granted then and the mother were to die you would have sole responsibility for your child.

Note if the appointment does not take effect on the mother’s death the appointee could still challenge where the child is to live via an application for a Child Arrangements Order. The Appointee would still have to apply for leave of court for the application, in order to determine there relationship to the child. The court would then decide where the child is to live based upon what is considered to be in the best interests of the child.

If any of this needs clarifying please do not hesitate to give us a call.
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Help 4 years 10 months ago #61704

Hi,

Can I check I have understood this correctly.

If one parent is the resident parent they can then name another person over the other non resident parent??

This has shocked me if I interpreted it correctly.

MH

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Help 4 years 10 months ago #61706

  • DaveR
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If your non resident parent and your former has residency then you would have to go to court to gain residency of your own child unless you have shared cared. Another reason that I am applying for shared.....

Regards,

Dave
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Help 4 years 10 months ago #61709

Hi There,

I understand it in the same way as above, if your ex were to die and she had residency then she could appoint someone other than yourself to be the carer of your child, however (even though truamaitic) you would almost certainly gain the residency (care) of your child through court unless there were circumstances which stopped this happening, for example history of abuse or violence, I'm sure this wouldn't be an issue for you, so don't panick.

What I would also say though is that it's quite normal for a will to be written up or changed after a divorce as anything that is left open, so an old will or just an understanding, can be acted upon if the ex dies, so if either of you died and didn't re write a will, if an old one still stands or an understanding had been agreed (or the divorce wasn't settled at time of death) then the ex would be awarded what ever was in the estate.

It is common practice to be advised to up date or write a will after seperation, it may not contain anything with regards to your child, unless you know other wise.

GTTS
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Help 4 years 10 months ago #61761

  • actd
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I am reasonably certain that in the event of a divorce, any will that is wholly or partly for the benefit of the other ex spouse is invalid so it's wise for you to draw up a will as well anyway, so that you can leave money for your son's maintenance and the rest goes to him (and so not your ex, if she has access to the whole sum) when he reaches 18.

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