As a Star Wars fan, I can still remember the first time I saw the shocking moment in The Empire Strikes Back when Darth Vader utters those famous words - "No, I am your father". It has become an iconic, if not misquoted scene in movie history.
However, if they were not "…in a galaxy far far away", would Vader have had a legitimate right to become Luke's legal guardian? There are a number of misconceptions about guardianship that would suggest he probably wouldn't.
When discussing wills with both clients in the office and friends out of it, one of the major reasons for delaying the preparation of a Will is potentially one of the most important reasons one should be done; "who will look after the kids if we die?"
In simple cases, if parental responsibility is shared, then if one parent dies the survivor will continue to be responsible for any minor children and no guardianship appointment within a Will can take effect until all persons with parental responsibility have died.
Yet, as Vader himself would soon find out, one of the misconceptions is that the father would automatically get guardianship if the mother has died. The fact is that unless the father has attained parental responsibility by being named on the birth certificate, has married the mother, or has had a court order stating the same; he wouldn't automatically become the legal guardian.
This, along with the other misconceptions such as the belief that ex-husbands with no relationship with their children have no right to be the guardian; that the guardian appointed in the last parent to dies' Will is the appointment that will take effect; that grandparents will automatically become guardians; and that godparents have a legal standing; demonstrate just how important it is to ensure that you take proper advice.
Even if you believe that you don't need a Will for your belongings, have you considered the implications of not having a Will could have on who will look after your children?
If you wish to contact me or anyone within Gepp's Private Client department to arrange an appointment to discuss a Will please do not hesitate to contact us on 01245 228125 or email me directly at firstname.lastname@example.org.