Appointing guardians for children in a Will - what to consider…

Jon and Sarah had a daughter together. They occasionally would raise with their relatives what they would want to happen should they pass away leaving their 5 year old daughter without them.  

Jon’s brother said it was great that they were considering the possibility and raising what they wanted with the family, but asked if they had formally appointed a guardian for their daughter in their Wills and if so, who was it?

A Will is an important document to put in place which outlines what will happen to your assets after you pass away. If you are a parent of minor children (children under the age of 18), then you should appoint a guardian for your minor children in your Will.

The person you name as a guardian in your Will will be regarded as a ‘testamentary guardian’. A testamentary guardian will automatically become a guardian of your minor children upon your death.

Each parent can appoint one or more people in their Will to be a guardian (they can appoint the same person or different people), and the appointment can commence either on the Will-maker’s death, or upon the death of both parents. Usually, if the parents have separated, appointment will commence on the Will-maker’s death.

If the other parent is still alive and has guardianship, the testamentary guardian will share guardianship with the other parent. This arrangement can be useful if one parent fears that if they die their child will be cut off from their family.

Testamentary guardians do not need to apply to the Family Court to become a guardian.

Being a testamentary guardian means that that person will be involved in decisions about the child’s life. A testamentary guardian does not have the rights to the day-to-day care of the child. If a testamentary guardian wants day-to-day care, they will have to apply to the Family Court for a Parenting Order.

However, a person being named as a testamentary guardian in a Will is not guaranteed to receive a Parenting Order from the Family Court. The Will merely relays to the Court your wishes as to who you want appointed as a guardian.

The other parent or other guardian(s) of the children are able to challenge the guardianship of a testamentary guardian in Court if they are not happy with who is appointed.

It pays to get legal advice from a legal professional to understand the legal requirements around arranging care for your minor children in your Will.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.