help needed dealing with will

melanzana

Get a good solicitor used to dealing with complex issues surrounding estates and so on.

Or I would step away and revoke my executorship.

It is just too difficult for you. You need to look after yourself.

Yorkshireman99

securityguy wrote: »

Oh, and GM4L is citing current law as amended.

Over to you, YM.

It does no alter the position. The OP stated that the testator wanted him to be the guardian but the minor wants to live with his uncle. As I said before the OP needs to take urgent professional advice on the whole will including the guardianship issue. That advice is almost certain to get the question of residence and guardianship resolved formally. That will initially be by involving Social Services and quite possibly formal appointment of the uncle as guardian by the Court.

getmore4less

Yorkshireman99 wrote: »

It does no alter the position. The OP stated that the testator wanted him to be the guardian but the minor wants to live with his uncle. As I said before the OP needs to take urgent professional advice on the whole will including the guardianship issue. That advice is almost certain to get the question of residence and guardianship resolved formally. That will initially be by involving Social Services and quite possibly formal appointment of the uncle as guardian by the Court.

The law is quite clear

The guardian gets parental responsibility and that allows them to let the child stay with the uncle.

securityguy

"The OP stated that the testator wanted him to be the guardian but the minor wants to live with his uncle."

Guardianship isn't residence. There is no problem, either legal or practical, with the two being different.

Your statement that "The arrangements for the son are the responsibility of the social servcies and the courts. Nothing in the will changes that." is flatly wrong. The will appointed the OP as guardian. That stands, assuming the OP is willing to be a guardian, unless someone with standing challenges it. The guardian has parental responsibility, in the absence of other factors, and they can exercise such authority over a sixteen year old as that gives them, including where the sixteen year old lives. You don't need permission from a court for a sixteen year old for whom you are guardian to live elsewhere, any more than you need permission from a court for your own child to go and live with their grandparents.

If the OP is happy with the situation of the son living with the uncle, then there is no need for anyone else to get involved. The uncle could apply for a special guardianship, but it's not clear that would be necessary or practical. There's the complication of an ex-wife who might still have joint parental responsibility.

"That will initially be by involving Social Services"

Why? If the uncle sought a special guardianship it would, but why does he need one? Sixteen year old, guardian is father's friend, residence with the (presumably) father's brother, there's an ex-wife who might still have joint parental responsibility. Unless the guardian, uncle and ex-wife disagree, what is the court going to do other than agree with their plans? And if they do disagree, what's a court going to do other than ask the sixteen year old?

"and quite possibly formal appointment of the uncle as guardian by the Court."

In the time before the 16 year old is old enough to make the whole thing moot? Really?

melanzana

Just get a good solicitor OP.

The rest of us are just speculating.

Yorkshireman99

Not so. A few idiots are making it up as they go along for their own self gratification.

melanzana

Yorkshireman99 wrote: »

Not so. A few idiots are making it up as they go along for their own self gratification.

Yes you may be right.

But in the OP's circumstances, I don't think s/he can do this without good legal advice. That is why it costs so much!

Straightforward issues can be dealt with from the knowledge some posters here have for sure.

But the scenario outlined in the OP is just a model for handing it over to those well versed.

IMO of course.

Sometimes it has to be done.

Tuesday_Tenor

Going back to the original post, there is another factor that needs clarification.

OP, were your friend and his ex-wife divorced? Another post has assumed this, but I don't think you have stated this yourself.

If they were divorced, there would normally have been a financial consent order about what should happen to the matrimonial assets.

I know virtually nothing about this but I would have thought that if, due to lack of capital to otherwise provide a home for the son, the house had to stay in joint names and with joint mortgage until the son was 18/leaves education, there would have been conditions about what would happen if one party died, or if a third party moved into the house as partner.

It all sounds like a horrible mess, and I don't envy you the task of trying to sort it all out.

getmore4less

securityguy wrote: »

"The OP stated that the testator wanted him to be the guardian but the minor wants to live with his uncle."

Guardianship isn't residence. There is no problem, either legal or practical, with the two being different.

Your statement that "The arrangements for the son are the responsibility of the social servcies and the courts. Nothing in the will changes that." is flatly wrong. The will appointed the OP as guardian. That stands, assuming the OP is willing to be a guardian, unless someone with standing challenges it. The guardian has parental responsibility, in the absence of other factors, and they can exercise such authority over a sixteen year old as that gives them, including where the sixteen year old lives. You don't need permission from a court for a sixteen year old for whom you are guardian to live elsewhere, any more than you need permission from a court for your own child to go and live with their grandparents.

If the OP is happy with the situation of the son living with the uncle, then there is no need for anyone else to get involved. The uncle could apply for a special guardianship, but it's not clear that would be necessary or practical. There's the complication of an ex-wife who might still have joint parental responsibility.

"That will initially be by involving Social Services"

Why? If the uncle sought a special guardianship it would, but why does he need one? Sixteen year old, guardian is father's friend, residence with the (presumably) father's brother, there's an ex-wife who might still have joint parental responsibility. Unless the guardian, uncle and ex-wife disagree, what is the court going to do other than agree with their plans? And if they do disagree, what's a court going to do other than ask the sixteen year old?

"and quite possibly formal appointment of the uncle as guardian by the Court."

In the time before the 16 year old is old enough to make the whole thing moot? Really?

If here is a living parent then they would normally have sole parental responsibility, the guardianship only kicks in when the last parent dies.

securityguy

"If here is a living parent then they would normally have sole parental responsibility,"

Only if they had joint parental responsibility at the point of the death of the other parent.

If they do have joint parental responsibility (which isn't the same as residence) then as you say, the guardianship is moot.