First Wills for Grandparents Raising Two Young Children

The situation

Sana had sold her business two years earlier and was fully retired. David still owned his dental practice, working three days a week while he eased toward stepping back entirely. Between the sale proceeds, David's stake in the practice, their investments, and a paid-off home, their estate was worth somewhere in the range of $3.5 to $4 million. Neither of them had ever made a will.

They had put it off the way many people do, until a family tragedy made the gap impossible to ignore. Eighteen months earlier, their daughter had died suddenly, leaving behind two young children. Sana and David had stepped in immediately, and the children had been living with them ever since, in what is sometimes called a kinship care arrangement — informal, loving, and entirely undocumented in any legal sense.

The children's father, James, was still involved. He and their daughter had separated years before her death, and his contact with the children had been irregular since — some months of steady visits, long stretches of silence, a pattern Sana and David had learned to expect but never fully trusted. When they came to Treadstone Law to finally make their wills, their first question was not about their business or their investments. It was: if something happens to both of us, what happens to the children?

What the estate plan needed to address

The honest answer was more complicated than Sana and David expected. Under Ontario's Children's Law Reform Act, a parent can name a guardian for their child in a will. Grandparents raising grandchildren can do the same thing — but a will-appointed guardian only takes effect if there is no surviving parent with an existing right to custody, or if a court decides that appointment should stand. James was very much alive, and as the children's biological father, he retained parental status even though the children had not lived with him in years. A guardian named in Sana and David's wills would only be temporary, and typically only for a matter of months, before a court would need to decide the question permanently.

That meant the wills alone could not solve the problem. If Sana and David died while the children were still minors, James would have a strong legal claim to take them, regardless of who the will named, and regardless of how the children had come to think of Hamilton as home. A will could express Sana and David's wishes clearly and could name someone to step in immediately, but it could not bind a family court to follow those wishes over a living parent's rights.

There was a second layer to the planning as well. At their level of wealth, leaving money outright to two young children was its own risk — a court would require any inheritance to be held for them until adulthood in any case, but without a trust structure in the will, that money would be released to each child in a single lump sum at age eighteen. For an estate approaching four million dollars, an eighteen-year-old inheriting a seven-figure sum outright is rarely the outcome a family actually wants.

Sana and David also had no powers of attorney in place — for property or for personal care — which meant that if either of them became incapable before the other, or at the same time, there was no one legally authorized to manage their finances or make health decisions for them without a court application.

What we did

1. Named a guardian in each will as a clear statement of intent. Even though the appointment could only be temporary if contested, naming a guardian in the wills mattered. It created an immediate, documented placement for the children the moment it was needed, and it gave any judge who later reviewed the matter direct evidence of Sana and David's wishes and their years of caregiving.
2. Recommended a direct conversation with James before either will was finalized. Rather than let the guardianship question sit as an unresolved conflict waiting to surface after a death, we advised Sana and David to raise it with James while everyone was alive to negotiate. A dispute settled now, in calm circumstances, was far better than the same dispute fought later in family court by grieving relatives.
3. Helped structure a family guardianship agreement. After several conversations, James agreed to a written arrangement: if Sana and David both died while the children were minors, he would consent to the children remaining with a named family guardian for a transition period rather than seeking immediate custody, in exchange for a documented right to regular contact and a role in major decisions about the children's schooling and health. The agreement was not part of the wills themselves, since custody arrangements for children are governed by family law rather than estate law, but it was drafted alongside the wills so all three documents told a consistent story.
4. Built two testamentary trusts, one for each grandchild. Instead of an outright inheritance at eighteen, the wills direct each child's share into a trust managed by a named trustee, with staged payments at set ages and discretion for the trustee to release funds earlier for education, health, or housing needs.
5. Prepared powers of attorney for property and personal care for both Sana and David. This closed the separate gap that had nothing to do with the children — the risk that a stroke, an accident, or a slow decline in capacity could leave neither of them able to manage their own affairs or each other's without court involvement.
6. Reviewed how David's dental practice would pass under the will. Because David still actively owned and worked in the practice, we made sure the will and its executor provisions accounted for the practice's sale or wind-down, rather than treating it as a passive investment like the rest of the estate.

The outcome

Sana and David signed their wills, along with their powers of attorney, about ten weeks after their first meeting with us. The guardianship question was the piece that took the longest, because it depended on James's willingness to negotiate rather than on anything within our control.

The result was a genuine compromise, not a clean win for either side. Sana and David did not get an ironclad guarantee that the children would stay with their chosen guardian no matter what — no will can promise that when a living parent is involved. What they got instead was a documented, good-faith agreement that reduced the odds of a courtroom fight breaking out at the worst possible moment, plus a will that would carry real weight as evidence of their wishes if a dispute ever did reach a judge. James, for his part, gave up the immediate custody claim he could have pressed, in exchange for a guaranteed relationship with his children and a voice in decisions that mattered to him.

Neither side loved every term. Sana and David would have preferred an outcome with no ambiguity at all, and James would have preferred not to sign away his right to seek custody the moment it might matter most. But both families could live with what they agreed to, and both children now have a documented plan instead of a silent gap that three adults had each been hoping the others would never have to face.

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