TAS Ex Wants to Adopt My Son - Is It Possible?

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Tim W

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......I can just add a clause to my will that allocates parental responsibility and care to one of my family members in the event that my partner and I both pass.
Ummm, no.
Wills are about property. Your children are not property.

Further, decisions about where a child lives are made with regard principally to the interests of the child.
What a deceased parent might say in their will about where their child(ren) live(s)
after the parent's death is, at law, no more than an indicator of the deceased's preference.
Something said in a will about custody* is in no way binding on the executor,
nor indeed on the person named as preferred carer.

Even if the court does award residence to the named person,
that's because, in all the circumstances of that particular case,
doing so is in the best interests of the child, and
not just because that person was the one named in the will.


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* Please excuse the old fashioned word, but it's the one most people recognise
 

Tremaine

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5 February 2019
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Let’s not make this thread about me. As I said, I’ve pursued legal advice about what’s to be included in mine and my partner’s wills regarding our preferences for care of our kids (sorry if I’ve used the wrong terminology like the word ‘will’, obviously I’m not a lawyer myself or I wouldn’t be seeing a lawyer about it...) and I’m inclined to take the advice of my lawyer over the advice of Mr Guy On The Internetz.

My suggestion to the OP is to see a lawyer. Again, let’s not hijack this thread and make it about me when I haven’t actually asked any questions. :)
 

Tim W

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It's not about you. Don't flatter yourself.
It's about a statement that somebody (only by coincidence, you) made that is wrong,
and that will, if left uncorrected, confuse, and at worst, mislead,
people who read this thread later.

You used the words "allocates parental responsibility",
as thought where the kids live after the parent dies is something the testator controls.
It isn't.
Your later use of the word "preference" is more accurate.
 

Simon Tyler

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27 March 2019
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Actually, the ex does have rights and it is very much about common sense. So bio dad has had no interest in the kid. Why would your death change that?

So the courts would look at the best interest of the child. What is in the kid's best interest? After losing his mum, be sent away with someone he doesn't know? or live with step dad, where there is a long and established relationship... Common sense.

Look if you're that worried about it, you could go see a solicitor and spend some $$$. I think You'll be causing yourself a pile of trouble.... See, you're likely to need dad's permission for anything to be legally binding. If dad doesn't want to give it, what then? all based on a possibility of you dying. Seriously, unless you have a diagnosis (and you have my symphaties if that is the case) but if you don't then live more, stress less.
Exactly, Its is the right thing for the child who can decide what he want to live with. his father or his mother.But if you need a child custody lawyers mississauga for your case.Contact him you will get satisfy.
 

sammy01

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27 September 2015
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The problem with adding a clause to a will is that it means basically nothing. It would be insanely easy to challenge... And I do think wills are just about property. Have I mentioned stressing less and living longer as a much better solution.
 

Rod

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And I do think wills are just about property.

Not true. Wills are mainly about property, but their other purpose is to provide for the care and welfare of minor children.

And wills are not easy to successfully challenge anymore - at least in Vic.
 

Tremaine

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5 February 2019
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Legal Aid indicates that in my state (Queensland), I can include a clause in my will nominating a testamentary guardian for my children after I die, granting them decision-making powers in respect of long-term matters like education. If the other parent is still living, then the testamentary guardian will share decision-making powers with them, but if the other parent is also deceased and there's no other relevant orders from the FamCA/FCCA, then the nominated testamentary guardian can take responsibility for the daily care of the kids.

If someone disputes testamentary guardianship, they can apply to the Supreme Court to have it removed or cancelled. Similarly, if someone disputes the living arrangements of the children, they can apply to the FamCA/FCCA to resolve the dispute for them.

But the court's obligations to the children's best interests only come into play if it is asked to intervene on such a matter, no? Or is it the case that every child who loses both parents becomes subject to court proceedings to decide where they shall live, even if nobody is disputing what their parents wishes were, as indicated in their wills?

And if the court doesn't intervene unless asked, then testamentary guardianship sort of is something the testator controls, isn't it? Until someone raises a dispute, only after which it becomes a preference?

Or is Legal Aid guilty of confusing/misleading people, as well? o_O
 

Tim W

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Ummmm.. You can certainly name who you would like as a Gaurdian in a will. So they are not just about property
Ummmm but, no matter the language in the will,
at law, it's only a statement of preference.
It cannot bind the executor, and does not bind the nominated guardian.
 

Tim W

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Legal Aid indicates that in my state (Queensland), I can include a clause in my will nominating a testamentary guardian for my children after I die, granting them decision-making powers in respect of long-term matters like education. If the other parent is still living, then the testamentary guardian will share decision-making powers with them, but if the other parent is also deceased and there's no other relevant orders from the FamCA/FCCA, then the nominated testamentary guardian can take responsibility for the daily care of the kids.

If someone disputes testamentary guardianship, they can apply to the Supreme Court to have it removed or cancelled. Similarly, if someone disputes the living arrangements of the children, they can apply to the FamCA/FCCA to resolve the dispute for them.

But the court's obligations to the children's best interests only come into play if it is asked to intervene on such a matter, no? Or is it the case that every child who loses both parents becomes subject to court proceedings to decide where they shall live, even if nobody is disputing what their parents wishes were, as indicated in their wills?

And if the court doesn't intervene unless asked, then testamentary guardianship sort of is something the testator controls, isn't it? Until someone raises a dispute, only after which it becomes a preference?

Or is Legal Aid guilty of confusing/misleading people, as well? o_O
Testamentary Guardianship is well short of the parental responsibility referred to above.