Recording what you want to happen to your children if you die before they turn 18 is extremely important.  It can be as simple as putting a provision in your Will. 

Under your Will, you can leave instructions for somebody to take over your role as the children’s guardian upon your death. The person who you can nominate to undertake this role is called a Testamentary Guardian.

Testamentary Guardians are required to make important decisions for children, particularly in relation to health, welfare, education, place of residence, religion and cultural decisions.  Guardianship for children ends at the age of 18.

It is important that if you give directions for somebody to be appointed as your children’s guardian in your Will, this is not an automatic appointment.  A proposed Testamentary Guardian does not automatically take over as a guardian of your children upon your death. Instead, the direction under your Will gives that person the right to apply to the Family Court to be appointed as a guardian.

If you do not make a provision in your Will for testamentary guardianship of your children, then you run the risk of your desired family members having to apply for “leave” or permission of the Court to make this particular application.  By leaving a direction under your Will, it takes away that initial step and makes things a little easier for them to get into Court.

Ideally a testamentary guardian should be somebody who can work well and alongside any other remaining guardian of the children.  It is also a possibility, if you wish, to leave a cash provision in your Will for your Estate to cover the costs of a Court proceeding for these matters. This is particularly important if you have a strong opposition to the remaining guardian becoming a full-time carer for the child or children or if you are the only surviving guardian and you have a clear view of who you wish to make these important decisions in your absence.

If you do not include a provision for testamentary guardianship, in your Will, then the surviving guardian (often the surviving parent) will automatically become the sole guardian of your child or children. Sometimes where there is no other guardian or no Will, maternal or paternal grandparents or aunts and uncles have been known to apply


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.