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Appointment of Testamentary Guardians

Document Cited authorities 16 Cited in Related
Vincent
AuthorLesley King/Peter Gausden
Pages127-132
12 Appointment of Testamentary Guardians

12.1 Introduction

It is possible for a parent with parental responsibility (see para 12.2) to appoint guardians to look after his minor children after his death. Such appointments can be made in a will and, when they are effective, parental responsibility for the child is conferred on the appointee.

The commonly used term ‘testamentary guardian’ is simply indicative of a person who has been appointed in a will but an appointment which is intended to take effect on death does not have to be in a will and can be in any document or deed which satisfies the requirements for appointing a guardian in section 5(3)–(5) of the Children Act 1989, as amended by the Adoption and Children Act 2002 (see para 12.3). A document intended to be a will which is dated and satisfies the formalities for execution in section 9 of the WA 1837 (as amended) complies with the requirements of section 5 but a document which does nothing else apart from nominate guardians cannot be admitted to probate as a will, even though it may, in all other respects, comply with the formalities for a will.

It is usually convenient for those with young children to make the appointment of guardians in their will because the will can also deal with other important issues related to the future upbringing and welfare of the children. In particular, the beneficial entitlements of the children must be considered together with the ability to draw on income and capital for the children’s maintenance, education and future welfare. This is usually catered for through a trust fund and it may be desirable to include the intended guardians as trustees of the fund as an aid to administration (see para 12.6).

The will may also include directions as to the manner in which the child is to be brought up. For example a direction may be included that the guardians shall bring up the child as a member of a particular religion or attend a particular school. Such a direction is in no way binding and is merely a statement of wishes. It is often more convenient to state such

128 Wills: A Practical Guide

wishes in a separate document which can then be updated without having to make a new will.

In resolving any dispute concerning the upbringing and welfare of the child, a court may have regard to statements of wishes but ultimately will be concerned with what is in the best interests of the child.

A person appointed as a guardian under section 5(3) of the Children Act 1989 may disclaim the appointment by an instrument in writing signed by him and made within a reasonable time of first knowing the appointment has taken effect (section 6(5) of the Children Act 1989). In all cases it is vital for the testator to discuss the implications of the guardianship appointment with the proposed guardians and secure their consent and willingness to act before making the appointment.

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