Appointing Guardians

The provision for a guardian in a Will is something which should be considered by all parents with children under the age of 18. The law relating to Guardianship, contained in the Children Act 1989, is concerned with the welfare of a child whose parents have died. The law allows a parent with parental responsibility, or anyone who is a guardian of a child already, to appoint a guardian in the event of their death.

This means that a father without parental responsibility (PR) cannot appoint a guardian, neither can a person with PR who is not a parent.

The appointment must be made in writing, dated and signed and is most commonly done under a Will.

When the guardianship comes into effect depends upon whether or not a residence order is in place when one of the parents dies. Where an order has been made in favour of the parent who has died the guardianship will come into effect on their death, even if they predecease the other parent who has PR. Where there is no residence order in place the guardianship will only come into effect when the last remaining parent with PR dies. Any appointment by the first parent to die will not come into effect until the second parent has died.

The distinction between the above is based on the fact that a court, when making a residence order, may have decided that the other parent is unsuitable and enabling the parent with the order to appoint a guardian may in effect protect the child.

Where more than one guardian is appointed, and any decisions relating to the child cannot be resolved between the parties, they can apply to the court for a residence order.

The person appointed as a guardian is not subject to approval by the court or a local authority, in fact, there is very little control over the appointment. A marked contrast with the rigorous checks carried out for fostering or adoption. The court does have the power to revoke a guardianship and this power can be used where the guardian is unsuitable. It is still debateable whether this power to revoke offers enough protection and whether a more effective measure would be for potential guardians to undergo some kind of vetting process.

Where both parents die without appointing a guardian (i.e. intestate or without provision in their Wills or other documents) the court can appoint a guardian for the child. The court will also appoint a guardian where the one appointed by the parents is unable or unwilling to act. This will usually follow an application to the court by the proposed guardian although the court may act of its own motion as well. In deciding who to appoint the child’s welfare is the paramount consideration.

The appointment can be revoked by a subsequent appointment (unless it is clear that the second appointment is in addition to the first), revocation by a signed and dated document, revocation of the Will in which the appointment is made or, where a spouse is appointed, by divorce. The appointment may also be revoked by the court on application by anyone with PR or the child themselves.

A guardian may disclaim the appointment within a ‘reasonable time’ which must be in writing.

Although a guardian can be appointed in any written document there are certain advantages in appointing in a testamentary document as these documents are more likely to be preserved, easily identifiable and will be under consideration by those dealing with the estate on the death of the parent.

Negus v Bahouse

The lover of a wealthy business man who committed suicide before fulfilling a promise to marry her on the QM2 has won a High Court battle with his family over his £3 million estate.

Multimillionaire Henry Bahouse and former dental nurse Cyd Negus had a ‘flamboyant lifestyle’ before his death in 2005. His Will didn’t provide for 50-year-old Ms Negus, who therefore claimed for financial provision to be made for the rest of her life from his estate.

Mr Bahouse’s family contested the claim, arguing that Ms Negus had already received the proceeds of a life assurance policy, taken out by Mr Bahouse for her benefit, and a half share in a Spanish property. Together, these were worth in excess of £600,000. According to Ms Negus, she and Mr Bahouse were intending to get married and even hoped to start a family.

According to Mr Bahouse’s family, the couple were on the verge of breaking up and Mr Bahouse had no intention of marrying Ms Negus.

In the view of Deputy High Court Judge Roger Kaye QC, they had lived together as husband and wife and she and had a reasonable basis for believing that her future financial needs would be met by Mr Bahouse. He awarded Ms Negus the ownership of the flat she had shared with Mr Bahouse (valued at approximately £400,000) and a lump sum of £240,000. The balance of the estate, worth about £2m, went to Mr Bahouse’s family – mainly to his son Gordon.

Alan Porter of The Will Centre said, “The case raises some interesting points. The first and most obvious is that this kind of stress and heartache could be avoided if people make a Will and keep it up to date. That way they can ensure their estate is divided according to their wishes. The other point is that it is possible in certain circumstances to successfully challenge a Will if a person feels their reasonable expectations to inherit have not been met, using the Inheritance (Provision for Family and Dependants) Act 1975 as amended.”

The world’s strangest laws 2

It is illegal to die in the Houses of Parliament (even though you might think it’s a good idea for some/all politicians).

Documental evidence is common in courts but remarkable exhibits also occasionally feature in cases of probate.

In Los Angeles, before the Second World War, George W. Hazeltine, 86, lay ill in hospital. He decided that he wanted to make a new Will and leave $10,000 to his nurses, Lillian Pelkey and Madeline Higgins. Being a matter of urgency and there being no paper to hand, Miss Pelkey pulled up her dress, placed a board under her petticoat, and the Will was pencilled on her undergarment.

After much deliberation the petticoat was eventually admitted to probate. Unfortunately the nurses were prevented from benefiting from the Will because they were the attesting
witnesses of it.


Alan Porter of The Will Centre warns “Many home made (or ‘hospital’) Wills are often found to be invalid because the deceased has not done it correctly and this includes the witnessing. A person who benefits from the Will cannot be a witness and neither can the spouse or civil partner of a beneficiary. It’s an expensive mistake to make.”

With inflation the $10,000 would now be worth approximately $149,166 or £76,055 at today’s rates. A very expensive mistake!!!!!!

IHT Exemption for War Veterans

This exemption is contained in section 154 of the Inheritance Tax Act 1984 and applies where a person was a member of the armed forces and was on active service. It provides that there will be no Inheritance Tax charged on the estate of a person certified by the Ministry of Defence or the Secretary of State as having died from a wound inflicted, accident occurring or disease contracted while on active service, or a disease contracted at some previous time, the death being due to or hastened by the aggravation of the disease during active duty.

World War veterans are not the only possible claimants. There are many families who have had relatives who have served in other conflicts such as Aden, Malaya, Korea, Northern Ireland, the Falklands and more recently in Kuwait, Iraq and Afghanistan.

A slightly bizarre side to all this, is that it is impossible for any potentially eligible ex servicemen and women to know whether their estate will be exempt. The decision will be made after their death and for this reason it is extremely important that their death certificates should list all causes of death. To ensure that this is done, the family doctor should be informed about this issue and veterans should put together a dossier of medical evidence and a detailed statement of wounds and/or diseases and keep records. With these documents, beneficiaries will be able to appeal to the MOD to get the Inheritance Tax refunded.

In most cases the Inheritance Tax will have to be paid in order for the family to get probate. The appeal comes after that. It must be made clear that this exemption only relates to Inheritance Tax payable on the estate of the deceased veteran; it does not relate to any other tax or duty payable for example on a lifetime transfer or when a discretionary trust comes to an end on death.

To claim the exemption, it is essential to obtain a certificate. There are two forms of certificate: a simple one for deaths of currently serving individuals where there is no doubt that section 154 is satisfied and one for other deaths.

By concession, the exemption has been applied in the past to the estates of members of the Royal Ulster Constabulary who died from injuries caused in Northern Ireland by terrorist activity.

Alan Porter, of The Will Centre, was in HM Submarines during the Falklands in 1982.

The world's strangest laws

In France, it is forbidden to call a pig Napoleon!

Unmarried Couples

With the changes to Inheritance Tax leading most married couples to debate changing the provisions in their Wills (whether it be recommended or not) it is worth remembering the provisions relating to unmarried couples are completely different and that the new ‘sharing’ of nil rate bands DOES NOT apply.

It is essential that couples living together consider the financial implications of their circumstances. Partners need to consider carefully what arrangements they want to make regarding their home, its contents, the mortgage or rent and life assurance.

Partners should make such written arrangements and agreements as are necessary to define the position as clearly and accurately as possible. As part of this documentation it is essential that couples living together have Wills.

Areas for particular attention include:

1. A husband or wife who dies without a Will are intestate and the estate will be divided by the rules of intestacy. However, the survivor of an unmarried couple does not come within the intestacy rules and may be entirely dependant on the discretion of the Court for their protection.

2. Gifts between husband and wife during lifetime or on death are exempt without limit. The same exemption does not apply to unmarried couples. This can result in a significant inheritance tax liability on the separate deaths of the couple, and a sizeable reduction on the estate passing to surviving children.

3. The legal ownership of the home requires serious consideration so that an appropriate arrangement is made for the survivor’s continued occupation of the original property or alternative accommodation if the former is sold.

4. They must also consider guardianship for any children.

5. The remainder of the estate will also pass under the rules of intestacy meaning the survivor of the couple will inherit none of the personal chattels of the deceased.

6. Any court action taken by a survivor could be time consuming and stressful and there is no guarantee that the action will succeed.

“More and more people are living together either as man and wife (but not legally married) or as civil partners,” says Alan Porter of The Will Centre. “This can create real problems if a Will is not made to reflect their circumstances. We have seen instances at The Will Centre where real financial hardship has resulted because a Will has not been done. It’s such a shame when this happens as making a Will is not a difficult task.”

For further advice contact The Will Centre on 01752-607040 for details of how to avoid this avoidable situation.