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Testamentary wishes and their effect?

February 24, 2015
Wills, Trusts and Probate

Often parents will want to appoint testamentary guardians for their children. This means naming somebody in their will to look after their children in the event that they predecease them whilst they are still minors. A testamentary guardian does not actually acquire any parental rights over the children, and their appointment will only take effect if there is nobody else with parental responsibility for the children who survives the testator e.g. another parent. Indeed, if a testator stipulates in their will that they wish for their children to be brought up by the testamentary guardian, as opposed to a biological parent with parental responsibility, this will have no legal effect at all, save for if the biological parent wants no involvement with the children. In order to honour the testator’s wishes, the testamentary guardian will need to apply for a special guardianship order, which will give them parental responsibility for the children and the authority to make day-to-day decisions on their behalf to the exclusion of anybody with parental responsibility. However, it will not extinguish the parental responsibility of others, and their consent will still be necessary in certain situations i.e. changing the children’s surname or moving abroad with them. 

In making this order, the court will have as its paramount consideration, the best interests of the children concerned. Recently, an English woman who was diagnosed with cancer and did not want her two children to return to live with her ex-husband in Australia executed a will which stated that “under no circumstances” did she wish the children to return to live with their father as “this would be detrimental to their lives”. Instead, she expressed wanting a friend or a relative in England to bring them up. 

Prior to the her death, family proceedings had been taking place in the High Court regarding the children, and after she passed away the court ordered the return of the children to their father, notwithstanding their mother’s wishes. It is important to note that in this case, the children were habitually resident in Australia and were not reluctant to return home to their father. However, it may be that when a parent passes away, and contrary to the wishes stipulated in their will, the children are to return to another parent who has not played an important role in their lives, the court may consider it to be in their best interests to remain with a testamentary guardian. 



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