When making a will, it is important not only that your family are provided for financially, but also that any children who are under 18 years will be cared for.

Part 5A of the Succession Act 1991 (Qld) sets out the procedure for appointment of testamentary guardians of infant children giving any such appointment full force of law.

The appointment of guardians may be made by will of the parent or existing guardian of a child and the appointment takes effect:

1. if there is no other parent of the child surviving, upon the appointor’s death;
2. if the other parent is still alive and if the appointment in the will stipulates that the appointor intended the guardian to be appointed even though there is another parent alive, then the appointment will take effect on the appointor’s death; or
3. in all other cases, the appointment will take effect on the death of the last surviving parent.

Whilst that is the intention of the legislation in Queensland, when compared with the concept of parental responsibility enshrined in section 61C of the Family Law Act 1975 (Cth), the outcome might be quite different. Section 61C of the Family Law Act stipulates that every parent of a child who is under 18 has parental responsibility for that child, irrespective of any change in relationship of the child’s parents.

Consider a situation where the parents of minor children are divorced in acrimonious circumstances, and one of those parents has the intention of displacing the parental rights of their former spouse in their will by appointing another person as the guardian of the infant children upon their death.

It is likely that the application of the Succession Act in respect of that appointment of a testamentary guardian would be gazumped by the parental responsibility provisions of the Family Law Act, given that the constitution requires any inconsistency between State and Commonwealth Laws to be determined in favour of the Commonwealth Law to the extent of the inconsistency.

There are too few cases to be certain as to the application of the law, but it is likely that the appointment of a separate guardian where there is a surviving parent who has not otherwise lost their parental rights and responsibilities through the courts, will have little effect.

Ultimately, any party who wishes to assert some interest in the care of infant children may approach the court to decide upon the appropriate arrangements to be made. In circumstances where the surviving parent is facing off against a testamentary guardian appointed out of spite because of a relationship breakdown, it is likely that little weight would be given to the motivations of the deceased in appointing the guardian.

However, if there are compelling reasons why the surviving parent should not displace the appointment of a guardian, then the court would likely consider those circumstances very carefully.

It is recommended that the appointment of testamentary guardians be considered very carefully and the following criteria might assist with those deliberations:

• Does the testamentary guardian enjoy a good relationship and regular contact with the child? You may wish to consider if your child will feel comfortable going to live with the testamentary guardians.
• Where are the testamentary guardians currently located? For example, would the child need to be relocated interstate moving away from school, friends and family?
• Consider the age and fitness to act of the testamentary guardians. For example, would it be wise to appoint your elderly parents or persons who are your contemporaries, for example, siblings or good friends?
• Are the testamentary guardians in a financial position where they are likely to make good financial decisions? Whilst you might be making arrangements to provide for your children financially in your will so that the testamentary guardians are not put to significant cost, there is still likely to be some cost imposed upon them and if they are experiencing difficult financial circumstances, it may be a significant imposition or temptation which could lead to decisions to the detriment of the infant child.
• Will your children be raised in the way that you would have raised them yourself given your values and belief structure? You can leave a statement of your directions and wishes to your testamentary guardians as to the arrangements that you would like made for the education and advancement of your children, for example, you may want your child to go to a certain school or university or to maintain contact with your religious beliefs or your church.

If you have not appointed testamentary guardians for your infant children, or if you have already appointed guardians and you wish to review that appointment, it is recommended that you review your estate planning arrangements and either make a new will or amend your will to reflect an appointment that you are satisfied with.

If you are separated from the other parent of infant children, it is generally recommended that as part of any discussions or negotiations with your estranged spouse about the welfare of your children, that you include a discussion about testamentary guardianship and have a consistent appointment in your respective wills so that there is no confusion about the intentions of either parent about the arrangements that they want to be put in place for the care of their children until they turn 18.