OK - I just checked out the Wills Act for WA (yes I really DO have no life ) and there is nothing in the legislation that states any specific way of doing it.
I'll have a look through our precedents on Thursday if you can wait? I don't work till then.
The letter that he said you should write is effectively for the judge.
While you can state a preference for care of your children etc in your will (as you have by the sound of it) in the end it will be up to a family court judge to decide what is in the best interest of the children if there are any arguments over what should happen to them (sometimes people just accept what is in the will - it only goes to court if there are any issues).
So in your letter just state your reasons. Don't try for fancy wording to try and make it sound legal and don't make general statements. Don't write "X was neglectful" write something like "We don't feel that X should be left in charge of our children for any time unsupervised because X left their own children at home unsupervised when they were only 6 years old and we do not feel that this is appropriate behavior" or whatever the actual circumstances were.
Basically, you won't be there to speak your mind so this is your opportunity. It can be as long or as short as you want but should have details - not necessarily dates but good examples that go toward forming the opinion that you have.
Also, if you are worried about it ask about a power of attorney and enduring guardianship as well. These are documents that are a bit like a living will. Because your will doesn't come into play until you die but it may be that you are terribly injured in an accident and unconscious and not able to make decisions for the care of your children and this is when these documents are useful.
Good luck. Making a will is never a pleasant process but it is a really important thing to do.
I've done wills for years and years and our standard practice is to always very strongly urge against having a letter of wishes. Anything that you want done in terms of your estate and care for your children should be included in your actual will.
I would also strongly urge you to put in place an Enduring Power of Attorney now. While the will deals with what happens after you day, the EPA deals with things while you are still alive but not capable of making decisions for yourself. Sorry to be morbid, but say you have a car accident and are in a coma. Maybe permanently and irreversibly. Your husband can't deal with your home because it is in joint names (I'm guessing - that's what's normal). So, your main family asset could be tied up and he won't have access to any funds - say he needs to move to a smaller house and pay for assistance for looking after your boys or whatever. Same goes in reverse. Millions of awful scenarios but that's just an example.
Anyway, an EPA would give someone power to deal with anything and everything on your behalf. Most common would be for you to appoint your DH and vice versa. It is also sensible to have an alternative. Really awful situation - both you AND your DH have a dreadful accident. Appoint someone you trust implicitly to step in on your behalf. FWIW, my DH and I have EPAs. We appoint each other and I have appointed my mother as an alternative.
Hope that makes sense.
I would really strongly recommend going to an estate planning lawyer to get your wills done, especially given that you want something fairly unusual. The Public Trustee is fine, but there are all sorts of ways a will can be done to minimise tax as much as possible, protect assets against bankruptcy, pensions etc. The Public Trustee provides very much a "no frills" option. It is something that most people hate doing but it is an incredibly important matter that should be handled properly by professionals.
Thank you Lulu, i think its something we're going to have to save up for to get done properly. I'm wondering if we should do the public trustee will in the mean time though, or is it a hassle to change later?? just that i know i'll get a decent nights sleep as soon as i have *something* official in place iykwim?
How come you urge against the letter of wishes? are they not taken seriously?
Thank you for letting meknow abut the EPA - something else we will have to do aswell.
Can you recommend anyone? otherwise i will go through the yellow pages and see who i can find in my area and get a quote.
What I have always seen done (only a law student here with little actual experience, so not actually a lawyer yet), was that you put your wishes into the will.
ie, state that you want to leave the kids in the custody of A & B in the event of your death or incapacitation. (you could also specify an express wish that Y & Z never be left in custody of the kids under any circumstance).
And then you would add to this an annexation, where you would include the letter which would lay out your reasons as to why in the event of anyone contesting that aspect of the will. In such a letter there i no such thing as too much detail, so add as much as you can remember. This is for the courts to take into consideration if the need arises.
As for enduring power of attorney, that is something you definitely need to discuss with a lawyer in terms of your situation.
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) and there is nothing in the legislation that states any specific way of doing it.
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