If you have children and you have a Will, it is likely that you have appointed a person or persons to be your children’s guardian on your death. Guardians appointed in a Will are called Testamentary Guardians. Most people assume the Testamentary Guardian will have the legal right to take the child/children into their day-to-day care upon the will-makers death. However, this is not the case.
The Care of Children Act 2004 (Act) notes that a Testamentary Guardian does not automatically assume the legal guardianship of children. Section 26 of the Act expressly provides that a Testamentary Guardian does not have the same right as a normal guardian in respect of the day-to-day care of a child/children. Therefore, a Testamentary Guardian will only become the children’s legal guardian if they can obtain a parenting order from the Family Court. Will-makers should be aware that the appointed Testamentary Guardian may not necessarily be successful in obtaining a parenting order in their favour.
In the case Johnson v Hill[1] a grandmother had been appointed the Testamentary Guardian of her two grandchildren by her deceased daughter. The grandmother applied to the Family Court for a parenting order for the children. In this decision the grandmother failed to obtain the parenting order in her favour. The Judge stated that the grandmother’s appointment as a Testamentary Guardian gave her the right to some input into the children’s lives and upbringing. However, it did not automatically give her the right to the children’s custody.
The Judge in this case recorded that eventually the children would live with their father. It was the Judge’s view that the father’s legal status as the children’s only surviving parent could not be brushed aside simply because of a belief that the grandmother might be able to offer the children a better home or out of respect for the mother’s wishes. When considering the Testamentary Guardian’s application for a parenting order the Court will treat the welfare and interests of the child/children as paramount before anything else.
Although the grandmother was not successful in the above case, it is still important to appoint a Testamentary Guardian in your Will. The advantages of doing so are:
- The appointment as a Testamentary Guardian does give that person the standing to apply to the Family Court for a parenting order;
- The appointment of a Testamentary Guardian by a deceased parent sends a strong indication to the Family Court about their wishes for their child/children; and
- By virtue of a Testamentary Guardian’s appointment, although a Testamentary Guardian may not have the day to day care of the children, a Testamentary Guardian does have the right to input into the children’s lives and upbringing.
[1] Johnson v Hill [1996] NZFL 1
Alice Nunn is a Senior Solicitor in the Succession and Wealth Protection Team at Norris Ward McKinnon. You can contact Alice at [email protected].
Kerry Reed Succession and Wealth Protection Teamis a Solicitor in the at Norris Ward McKinnon. You can contact Kerry at [email protected].
