University college of Law

Testamentary Guardianship

Submitted by: Amulya Nigam Submitted to: Dr. Kala Munet

Testamentary Guardianship

• The father or mother of a minor child, may appoint any person to be a guardian of the child in the event of the parent’s death.

• This may be done by parent’s will.• A testamentary guardian does not have the “right to

custody” of the child but they do have the right to control the upbringing of the child under their guardianship.

• A hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of minor person or his or her property.

Where parent is a guardian?

• If a parent is already a guardian, he or she has the right to appoint a guardian, and that appointment will be confirmed automatically as soon as the Will is admitted to Probate, provided the testamentary guardian is at least 20 years of age.

Where parent is not a guardian?

• If a parent appointing another person as guardian, who was not a guardian at the time of parent’s death. Then the testamentary guardian must apply the court to confirm his or her appointment.

• The court will only appoint that person as the testamentary guardian if it thinks fit. The court can take the wish of the deceased parents into account. The welfare of the child is the paramount consideration of the court.

When testamentary guardian are appointed?

• A parent who is confident of the parenting capabilities of the child’s other parent may not wish to appoint a guardian in the event of his or her own death. However it is wise for such a parent to appoint a guardian in the event of the death of both parents.

• A parent who is not confident of the parenting capabilities of the child’s other parent, and this applies particularly to separated parents. Separated parents appoint a testamentary guardian.

Who can be appointed as testamentary guardian?

• The first place to seek a guardian is usually within the extended family, e.g, brother, sister, uncle, aunty, grandparents or any close relative.

• Otherwise a close friend , a godparent or someone else trusted within the community.

When Testamentary Guardianship ends?

• Guardianship ends when the child turns 18,marries or enters into a Civil Union de facto relationship, or by court order whichever is the earliest.

Powers of testamentary guardian

• The testamentary guardian has all the powers, rights and obligation of the natural guardian so far as they are not limited by the will though his obligation to provide maintenance is not personal and exists only to the extent that there are properties of the minor.

• It is the duty of testamentary guardian to look for minor’s support, and when someone else is the guardian of minor’s property, the testamentary guardian should apply court for necessary funds to be made available for the support of the minor.

THANK YOU !