Navigating family and personal relationships: the appointment of testamentary guardians

Abstract

This paper explores how the parents of minor children navigate the process of appointing testamentary guardians for them. Although guardianship represents a significant legal and practical status, its essentially private nature ensures that very little is known about it. Drawing on a series of interviews conducted with professional legal practitioners, this paper examines the extent to which concerns about children's future care feed into parents' initial motivation to seek will-making advice, the guardians they choose to appoint and how practitioners input into the decision-making process. It explores what this process reveals about the constitution of parents' family and support networks, and how the guardianship decision impacts on the relationships which comprise them. In particular, the comparative willingness to see friends as potential guardians and the sensitive terrain that family can present in this context is highlighted. Having examined how parents and practitioners seek to navigate these relationships, the paper concludes with a consideration of the potential implications for both policy and practice.

Keywords:

• guardianship
• wills
• friendship
• family relations

Notes

 1. The most prominent of these was conducted by the BBC1's Panorama programme, ‘Wills – the Final Rip-Off’ broadcast on 9 August 2010.

 2. As will-writing is not an activity which is reserved to the legal profession anyone can operate as a will-writer and draft wills without either training, or insurance protection. The Law Society is currently campaigning for the introduction of a formal regulatory system. Details of the campaign can be found at: http://www.lawsociety.org.uk/representation/campaigns/will-writers/ [Accessed 28 November 2012].

 3. It is suggested that this may due to the largely uncontentious nature of guardianship. Notable exceptions are, however, provided by Lowe and Douglas 1992, 2007.

 4. An appointment must be made in writing, dated and signed by the person making it: Children Act 1989, s 5(5). Whilst it is not essential that they are incorporated into a will, it is generally thought that the vast majority of appointments are made in this way.

 5. As is well known, this review ultimately led to the enactment of the Children Act 1989. The current law on guardianship is contained in ss 5–6 of the 1989 Act. The empirical study of guardianship was conducted on the Commission's behalf by a Mrs Priest. It is incorporated in the Commission's 1985 Working Paper, at Appendix B.

 6. The study sample comprised 26 solicitors. Participants were selected on the basis of their regular attendance at a magistrates' court, and their ‘constant contact’ with family law matters. It should be noted that, at the time of the study, will-making was not generally regarded by law firms, ‘as a matter in which particular members will specialise’ (Law Commission 1985, p. 192).

 7. Very little is known about the number of legal guardianships in England and Wales. The number of children for whom Guardian's Allowance is paid may provide the best indication of the number of children who have lost both parents. This is an extra allowance which is paid in addition to child benefit for people who are bringing up a child or children because both of their parents have died or, in exceptional circumstance, where only one parent has died. Although HMRC no longer publishes the figures, Guardian's Allowance is currently paid to over 3000 families for around 4000 children (I. Coppola, HMRC, Personal correspondence, 3 April 2012).

 8. Peter Connelly was a 17-month-old boy who was killed by long-term abuse. After his death, he was found to have a broken back and eight broken ribs. One of his teeth was found in his colon. Although his story dominated the news, he was only one of 55 children killed by their parents or someone known to them between April 2007 and March 2008 (The Lord Laming 2009, p. 3). On average, between one and two children are killed by their parents or carers each week.

 9. In the modern law firm the vast majority of will-related work is now carried out by specialist practitioners.

10. These included large commercially oriented firms, various ‘full’ and ‘general’ service firms of differing sizes and one sole practitioner who concentrated on aspects of private client work. For those firms whose will-writing services comprised more than one individual, practitioners were selected primarily on the basis of seniority. Twenty-two of these practitioners were solicitors, whilst the remaining two were legal executives.

11. Will-writers have been making inroads into the will-making market in recent years. For example, a survey conducted on behalf of the National Consumer Council in 2007 found that 8% of respondents who already had a will had used a specialist will-writing firm. In addition, over 10% of all respondents reported that they would be prepared to use a will-writer in the future (Brooker 2007, pp. 9–10). Although it ultimately proved necessary to go outside the East Midlands in order to include one will-writer in the study, the work conducted by his firm does overlap the East Midlands region.

12. Research suggests that the majority of those who make wills do so with the assistance of a will-making professional. For example, 89% of respondents to the 2007 National Consumer Council survey (above note 11), who had already made a will, had done so through a professional.

13. See also Hacker's (2010b) recent study of wills submitted for execution to Israeli tribunals which demonstrates the various ways in which lawyers direct and mould their clients' wills.

14. This fits with the findings of previous research. For example, both the National Consumer Council (above note 11) and recent research designed to help inform the Law Commission in conducting their review of the law of intestacy (Humphrey et al. 2010) found that will ownership increases with age. In a similar vein, Karen Rowlingson's research into the extent that people plan for the future revealed that few respondents under the age of 50 had actually made a will (2000, p. 31).

15. For the majority of practitioners, the proportion ranged between 20% and 50%. Although broadly in line with existing research, this may be slightly higher than previously indicated. For example, Rowlingson and McKay's research into attitudes to inheritance found that just 27% of parents aged under 45 had made a will (2005, p. 71).

16. ‘Young professionals’ and ‘middle class parents [with] a good bit of money’ were also reported to be particularly keen to address the issue of guardianship. Such clients were found to be more aware of their potential ‘vulnerability’, particularly where they experienced a significant amount of flying as a result of either holidays or work (Practitioner 16: Solicitor, 30 years' experience).

17. There is one exception to this position, namely where the deceased parent has a residence order in his or her favour. In such instances the guardianship appointment takes effect on his or her death, even though there may be a surviving parent with parental responsibility: Children Act 1989, ss 5(7)–(8). Where a child's mother and father are married, both have parental responsibility. Whilst an unmarried mother has automatic parental responsibility, an unmarried father must take steps in accordance with the 1989 Act to acquire it: Children Act 1989 ss 2, 4.

18. Indeed two practitioners described a ‘complicated’ clause which they had drafted for one such client. This not only explained the client's alternative choice of guardian, but also included the establishment of a ‘fighting fund’ to finance the guardian in taking out any necessary Children Act applications in the event that the appointment was subsequently challenged by the child's natural father (Practitioner 19: Solicitor, ten years' experience, Practitioner 20: Consultant Solicitor, over 25 years' experience).

19. Those siblings or parents will also usually be part of a couple. Parent and parents-in-law were generally appointed as a couple – in other words, they were generally both appointed as guardians. However, when dealing with siblings practitioners were divided as to the desirability of also appointing that sibling's spouse or partner, given the potential implications should their relationship subsequently break down.

20. Such questions were raised with varying degrees of forcefulness – from those practitioners who tend to ‘caution’ clients about appointing their parents, to others who ‘float the idea’ of choosing someone younger or simply ask a series of questions about the age, health and prognosis of grandparents.

21. One suggestion was that siblings who were single were often not considered to be suitable, particularly if they were also male. Indeed one practitioner observed that in his 33 years of experience, he had never had a case of a single man being appointed guardian. This was a situation which he attributed to a ‘general perception … that they're not trustworthy’ (Practitioner 5: Solicitor, 33 years' experience).

22. Janet Finch's earlier study of probated wills similarly found that only 17% of testators named a non-relative, such as a friend or neighbour, in their will. This compares to 92% who named at least one relative as beneficiary (Finch and Mason 2000, pp. 67–68).

23. In a similar vein, Judge (1995, p. 297) observes that ‘bilateral kinship patterns are the cultural norm in the United States’ and that these operate to shape how property is allocated in one's will.

24. For example, Finch et al. (1996, p. 124) argue that, ‘for the most part’ bequests are the product of ‘the “positions” which people occupy within a kin network’, rather than the specific relationship that they have with the testator. In a related vein, and highlighting the importance of the blood connection, Humphrey et al. (2010, p. 33) found that where respondents distinguished between their biological children and step-children, the preference was for blood-related family members to inherit. Indeed there was a view amongst respondents that step-children were ‘less entitled’ than biological children (Humphrey et al. 2010, p. 60). For those participants who prioritised biological children over the claims of a second spouse, the emphasis was again very firmly placed on the child's blood-tie with the deceased (Douglas et al. 2011, p. 268).

25. On the personal importance of friendship see, for example, Weeks et al. 2001, Roseneil 2004, Roseneil and Budgeon 2004, Allan 2008.

26. These findings are in accordance with Allan's (1989, p. 56) suggestion that there are conventional limits on the extent to which friends are used for child-care. Whilst a friend may be used for long-term systematic care on a reciprocal or paid basis, it is much more usual for them to be used occasionally.

27. The basis for this practitioner's decision was that whilst his children only saw his parents once or twice a month, they saw his mother-in-law several times a week. Indeed she regularly looked after the youngest child when his wife was at work. Although of the view that his father would accept their decision ‘because he is logical-minded’, the same could not be said of his mother. ‘The conversation’ about guardianship was thus described as one that he ‘did not particularly want at the moment’.

28. Finch et al. (1996, p. 118) found that in over three-quarters of the wills contained in their study sample, people from the same kin type were treated on identical terms. Building on that work, Finch and Mason (2000, p. 76) subsequently argue that the data suggest that, ‘the most prominent principle of division’ is to give equal shares or gifts to those people who occupy the same genealogical position in relation to the testator.

29. One practitioner had experience of a client who had requested the appointment of eight family members to jointly act as guardians (Practitioner 9: Solicitor, over 30 years' experience).

30. Indeed one practitioner described how when she joined her present firm the wills ‘team’ were appointing guardians from both sides of the family. As children will generally live with their guardians, this approach was described as ‘a total waste of time’. The firm's practice had since changed accordingly (Practitioner 24).

31. This practitioner was very clear that his mother-in-law, who had been appointed sole guardian, would not act so as to cut his parents out of their grandchildren's lives. However, by appointing his own father as a trustee, he was able to ensure (and signal to all involved) that this would not be possible. As trustee his father would be formally involved whenever his mother-in-law required access to the money that the children had been left. His continued role in key decisions regarding the children's lives and upbringing was thereby secured.

32. The vast majority of practitioners in the study had experience of clients where difficulties relating to guardianship had ultimately led to a failure to execute a will.

33. The state, through the medium of law, is also increasingly willing to look to friends as the appropriate carers of children. If a child is to be fostered, then ‘stranger’ foster-parents (or a Home) ought not to be the local authority's first choice – instead the focus is on ‘kinship care’ as the first option. Preference should generally be given to a foster placement with ‘a relative, friend, or other person connected with’ the child: Children Act 1989, s 22C.

34. In recent years there has been a huge rise in interest in tracing one's ancestors (see, for example, Smart 2007). In addition, television series such as ‘Who Do You Think You Are?’ in which celebrities research their interest in family history, are extremely popular. Indeed Millbank (2008, p. 146) goes so far as to refer to what she terms our ‘cultural preoccupation’ with genetic information.

35. Human Fertilisation and Embryology (Disclosure of Donor Information) Regulations 2004, SI 2001/1511. In 2009 such individuals were also given the additional right to seek information about the identity of persons who share the same donor, provided that those donor-conceived ‘siblings’ also consent (Human Fertilisation and Embryology Act 2008, which inserts a new section 31ZE into the Human Fertilisation and Embryology Act 1990).