When making a will, parents of minor children have the ability to appoint a testamentary guardian or guardians to act in relation to the children following the death of the parents. In general terms, ‘guardianship’ refers to the full range of rights and powers that an adult may exercise in relation to the upbringing of a child, namely powers relating to the child’s long-term welfare as well as responsibility for daily care, control and custody.
The ability to appoint a guardian exists in the legislation of each Australian State and Territory.1 In New South Wales, for example, the law provides that:
- On a parent’s death, the surviving parent is to be a guardian of the minor, either alone or jointly with a guardian appointed by the deceased parent.2
- If the deceased parent has not appointed a guardian, or if the guardian(s) appointed by the deceased parent are deceased or refuse to act, the Court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent.3
- The parent of a minor may, by deed or will, appoint any person to be the guardian of the minor after the parent’s death.4
- Any guardian appointed shall act jointly with the surviving parent, unless the surviving parent objects.5
- Guardianship ceases upon the minor attaining the age of 18 years.6
However, there is a complex relationship between the State and Territory-based legislation described above,7 and the Family Law Act 1975 (Cth) (Family Law Act) which operates at a federal level.
The Family Law Act differs in approach to the State and Territory-based legislation in that it relies not upon the historical concepts of guardianship and custody inherited from the English law, but rather upon a newer concept of ‘parental responsibility’.
Under the Family Law Act, ‘parental responsibility’ means ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.8 Parental responsibility can be displaced by a parenting order of the Federal Court and Family Court of Australia (Family Court).9 The effect of such an order is to confer parental responsibility (in the sense of ‘duties, powers, responsibilities or authority’)10 for a child upon a person. In all cases, the ‘best interests’ of the child is the paramount consideration.11
The trouble is that the Family Law Act says little about what occurs upon the death of those person(s) having parental responsibility. Indeed, there is a complex relationship between testamentary guardianship as it exists under State and Territory legislation, and parental responsibility which is central to Family Law Act.
In short, the position appears to be that:
- Whilst there is an ability to appoint a testamentary guardian under State and Territory legislation, this remains subject to any parenting order of the Family Court.
- In the event of a dispute or uncertainty, any concerned person may apply to the Family Court for parenting orders granting parental responsibility.
- Accordingly, a testamentary guardianship appointment under a will could be superseded by a subsequent parenting order. Indeed, this has occurred in a number of recent Family Court cases.12
- It is unclear whether an appointment of a guardian by will to act jointly with the surviving parent of a child will have any effect in the absence of a court order.
- The clearest circumstances in which a testamentary guardianship appointment by will would likely remain effective is where:
- the appointment is made by a sole surviving parent; or
- the guardian is intended to be appointed only upon the death of both parents.
- The terms of any existing parenting order between separated parents must always be considered.
Ultimately, the area is ripe for law reform at the federal level to clarify the uncertainty between the interaction of State and federal legislation in relation to these matters.
In the meantime, it is important for parents to be aware that, whilst they may appoint a testamentary guardian for their minor children by will, such appointment may be qualified or amended by application to the Family Court for contrary parenting orders.
Specialist estate planning advice about these matters should always be considered, especially where family circumstances are complex or likely to be disputed. Family law advice may also be required.
Practical considerations in appointing a testamentary guardian
When it comes to choosing a guardian, decisions should be made with reference to the best interests and needs of the child. Parents will logically consider matters such as family values and the children’s needs in determining who may be suitable and available to take on the role of guardian.
A family member, such as an aunt, uncle or grandparent (though having regard to their age and physical and mental ability), is often suitable. Normally, it would be desirable for the child to be placed in an environment which is as similar as possible to that with which they have been accustomed.
It is usually sensible to appoint a single guardian and a substitute. This will avoid disagreements between joint decision-makers. It may not be appropriate to appoint both parties to a married or de facto couple, if their future divorce or separation would add complexity to the ongoing guardianship role.
Further, it may not always be appropriate for the guardian to also be appointed executor or trustee of the child’s inheritance. Parents ought to ensure such a person is a prudent financial manager, and that a conflict does not arise between the guardian’s duty and interests.
Sometimes, the expenses a guardian may bear in raising another’s child (for example, building or renovating a larger home to accommodate a larger family, or purchasing a larger vehicle for transportation) may not be covered by a gift made by the parent to the child in their will. To avoid financial hardship, provision for the guardian could also be made in the will.
Occasionally, it may even be appropriate to ensure funds are available to the guardian to apply for a parenting order or defend a guardianship challenge, such as where the guardian is appointed jointly with a surviving parent whom the deceased parent deemed wholly unfit to have sole parental responsibility for the child.
Finally, parents may wish to leave (in a separate document accompanying their will) guidelines addressed to the guardians about matters arising in a child’s care, such as who ought (or ought not) to be involved in the child’s upbringing, lifestyle expectations, cultural values and religious instruction, education preferences, sports and hobbies, screen time and other matters.
This is an abridged version of an article by the same author which first appeared in the STEP Australia Newsletter Issue 30, September 2025. To read the newsletter, click here.
This article is drawn from a paper of the same title delivered by the writer on 28 August 2025 at the Law Society of NSW Specialist Accreditation Conference.
This article covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This article is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
[1] See: Guardianship of Infants Act 1916 (NSW) ss 13, 14; Testamentary Guardianship Act 1984 (ACT) s 8; Guardianship of Infants Act 1972 (NT) s 16; Succession Act 1981 (Qld) Pt 5A; Guardianship of Infants Act 1940 (SA) s 13; Guardianship and Custody of Infants Act 1934 (Tas) ss 4, 5, 6; Marriage Act 1958 (Vic) s 135; Family Court Act 1997 (WA) s 71.
[2] Guardianship of Infants Act 1916 (NSW) s 13(1).
[3] Ibid s 13(2).
[4] Ibid s 14(1).
[5] Ibid s 14(3).
[6] Ibid s 20A.
[7] Except for the Western Australian legislation which specifically incorporates the concepts encapsulated in the federal family law legislation.
[8] Family Law Act 1975 (Cth) s 61B.
[9] Ibid s 61C(1) Note 1, (3).
[10] Ibid s 61D(1).
[11] Ibid ss 60CA, 65AA.
[12] See, eg, Parker v Randolph [2007] FamCA 472, Gelber v Halliday [2020] FCCA 1860, Walsworth & Ahern [2024] FEDCFAMC2F 441.