Hello again & thanks for the extra info.
Glad to hear your death is not imminent!
I would advise you to get expert advice from a solicitor that specialises in wills and probate because your will needs to do two things in addition to the normal straighforward legacies to individuals, and stating what is to happen to the rest of your estate not covered by specific legacies:-
a) in your will, you need to appoint a guardian for your children.
b) in your will, you need to specify what assets are to be held in trust for your child and (very importantly) appoint the trustees of that trust. That's in addition to appointing executors of your estate overall (although I believe that it may be possible for the same people to be both – but check with a specialist solicitor about that. )
You need to speak to the proposed guardian and the proposed trustees to be sure that they will agree to take on these roles, which would mean taking on serious responsibilities on their part.
After your death, the children's guardian will be as stated in your will – unless their mother succeeds in an application to court to challenge that appointment. There is nothing that you can do to prevent any application to court by the children's mother. She has a legal right as the children's mother to make the application to court. Her application would be for a residence order.
A residence order is an order the intention of which is to settle permanently with whom children are to live. A residence order automatically confers parental responsibilty on the person in whose favour the residence order is made, if they do not already have it. (Mothers automatically have parental responsibilty).The person whose name is XXXXX XXXXX residence order can make all day-to-day decisions concerning the children eg what to eat for tea, what time to go to bed etc – but they must still get consent of all others with parental responsibilty (eg the mother) or leave of the court for all major decisions in a child's life eg whether or not to change a child's name, or to emigrate with a child.
The family court will decide in whose favour to award the residence order not on the basis of who shouts loudest, but on what is in the best interests of the children.
If the legal guardian appointed in your will is your current partner, with whom the children have been living for some time, and the children are happy in her care and being properly looked after by her, then it is highly likely that the family court will award the residence order in favour of your partner. (Whether or not she is your wife by the date of your death is irrelevant to the court's considerations). In general, the court does not like to disrupt children by moving them unless absolutely necessary for their welfare. The older the children are by the date of your death, the more their wishes and feelings will be taken into account – especially if they are 12, 13 14 or older. But their feelings will not be the deciding factor if the court felt that for their welfare they would be better off living with their mother – but from you say about their mother's lifestyle, this is not likely.
The mother's low income and small flat would not be the deciding factor because if she obtained a residence order in her favour, she would be eligible for a greater range of benefits, and eligible to apply for rehousing. The court will give much more weight to non-financial factors in reaching its decision.
The court is much more likely to decide in favour of the mother if it is your sister that is appointed legal guardian a) because from what you say, the children do not see her often and do not have a close relationship with her b) the court in such circumstances are more likely to favour a natural parent c) the court will also want to be reassured that the children will be able to maintain their relationship with their mother – but that is not to say that I can predict the outcome of any court case. The court will investigate thoroughly with whom the children would be best off IF (and only if) their mother makes a formal application to court to challenge the person appointed in your will as the children's guardian.
However, even if the court awards the residence order to either your partner or your sister, that does NOT mean that that person would have the right to cut off all contact between the children and their mother. The court is very keen that children should be able to maintain contact with the parent they do not live with. If either your partner or your sister indicated that they DID want to stop contact between the children and their mother, that could influence the court AGAINST making the residence order in their name.
It is likely that at the same time as making a residence order in favour of your partner, the court would also make a contact order in favour of the children's mother, just so that everyone was clear about the arrangements for the children to continue to see their mother regularly. (The children's mother even if she did not challenge the person appointed as guardian in your will could at any time apply for a defined contact order if she felt that her contact with the children was being reduced unfairly.)
Adoption is not the appropriate course of action in your case. Adoption is not used where the child is a known family member (except sometimes very rarely in care cases). The adoption process requires a lengthy social services asessment of the potential adopters which can take up to a year to be prepared, plus a formal application to court which would involve the children's mother, where the court considers whether or not it would be appropriate to dispense with her consent. Adoption ends any parental rights of the natural parent, and the court is not going to order that in your case.
In theory you and your partner could now apply for a residence order in your joint names, if you wanted to secure your partner's legal position. But I would strongly advise against taking such action now because a) applying to court is stressful (not just for you and your partner, but for the children as well), time-consuming and expensive. b) you have an arrangement with the children's mother which seems to be working, despite your criticisms of her. If you go to court now all that will be put in question. c) even if you were granted a residence order now, the children's mother could still reapply to court on your death on the grounds that that had been a change of circumstances, and ask the court to look at the situation again.
I hope this helps and I wish you the best of luck.
Thanks and best wishes...