Can someone with legal will experience help me

I was wondering if anyone (possibly with legal experience) advise me on the best way to tackle writing a letter to accompany our wills?

I have spoken to the public trustee who told us we can fill out the info online and they send us our wills. We are leaving custody of our boys to the paternal grandparents. We know we cannot prevent visitation with the maternal grandparents but were advised to include a separate letter with our wishes why we do not want visitation to occur or should they contest it, for it to be supervised at all times. He did say to be fairly specific, as in describing incidents where these people had been abusive and neglectful (to their own children). But i am not sure how much to write and how to go about it? do i use normal language? do i sight dates and in how much detail would i go?

If anyone else has been through this process or something similar i would really appreciate hearing from you, its quite upsetting and stressful but i have to get it done.

I would in all honesty go and speak to a solicitor.

I work for a solicitor who specialises in estate planning and there are a lot of different things to consider - some you might not have even thought about, you should also consider doing a power of attorney and enduring guardianship.

I really think that it is money well spent and seeing as it is an important legal document it is better to speak to a professional about it.

T - in your Will, make mention of the fact that you do not wish for such and such to have visitation - then refer it to an annexed page. The more detail you go into the better.

If you need a precedent will to go by, I can find something at work for you.

I cant help you but I am very happy to hear you can make provisions like that in your will! I definately wanted to put something along those lines re my mother but didnt think you could. Will be interesting to hear what others have to say!

(And you given me a reminder to remake our wills too, they are 4yrs out of date *eek*)

Thanks Mel, whats a precedent? He said the letter will go with the will but will never be opened unless it went to family court.

Kylie you're right and i wish we could but we just can't afford it, and thats why its been put off for so long. I now just need to get something out there and i figure thats better than nothing at the moment.

Hopefully one day we can get a proper one done up.

Anna there are different laws for each state so you need to contact your state govt trustee.

He has also given me a couple of numbers to call to gain advice so we can look at preventing contact now, finding out ours and their rights etc.

T - a precedent is a document that is like a template - you change it to suit your circumstances, but its basically the same. Thats all solicitors do anyway (not to diss solicitors, considering I work for one!!)

I'll check out the legislation for you for WA and see how different it is to Qld. They usually don't differ too much. Then I can email you some precedent stuff if you like?

Yes thank you Mel, i would really appreciate that!

OK - I just checked out the Wills Act for WA (yes I really DO have no life :rolleyes:) 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.

Yes thanks Mel, i'd appreciate that.

and thanks Muppity :)

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.