Wills and Guardianship of Children

If you thought it was a bad idea from a financial point of view to not have a will, it can get even worse.

There is a tragic case in the media at the moment that involves custody of the three children of a woman who was murdered. Angila Wilson’s former common law partner is accused of having killed her almost a year ago. Ms. Wilson’s brother and his wife are seeking custody, and according to them, the children’s father’s family is also seeking custody. Meanwhile the children are languishing in temporary foster care with the B.C. Ministry of Children and Family Development.

The case may be complicated by the fact that custody is not the same as guardianship, and that the father of the children likely still has legal guardianship. I don’t know the specifics of why it is taking so long in this particular case to get the kids into a permanent home, and I don’t know whether Angila had made a will or not.

What I do know is that it is extremely important for parents to make provision in their wills for what happens to their children if they are suddenly no longer there to look after them. Murder is highly unusual (thank goodness), but accidental death or sudden devastating illness (heart attack, aneurism, etc.) can also occur. Making arrangements for guardianship of young children is even more critical for single parents.

For a two parent family, if one parent dies unexpectedly, the surviving parent becomes the sole guardian. For a single parent family, if that parent dies, the biological parent may have rights to act as guardian but that is not automatic.

If both parents are killed in an accident, then family members on both sides may apply for guardianship of the kids. Blood relatives are preferred by the courts, and where ethnic or racial considerations are involved, such as for first nations children, one of the criteria for custody and guardianship is ensuring that the children keep a close connection with their ancestral background.

Keep in mind also that just because a person lives with the parent of a child, even if they marry, that person does not automatically become the guardian of the child. In such a case, the death of the parent could result in a child being removed from a home she has known for most of her life, because another relative has successfully applied for guardianship.

It is possible provide for guardianship in your will in case you die before your children are 19 years old. Of course if there is a second guardian already, that person would remain as guardian if you die. If there isn’t another guardian already, or if that person dies at the same time as you, then you had better appoint someone in your will, because otherwise there could be a battle about who gets to raise your children.


About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
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