Every Australian State and Territory has legislation in place giving each parent the right to appoint, by will or deed, a testamentary guardian(s) to act in relation to minor children following a parent’s death.1 Though similar, each Act is not identical, and must also be read subject to the operation of Part VII of the Family Law Act 1975 (Cth) (FLA) which operates at a federal level.
In New South Wales, for example, the key provisions are as follows:
- 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
In the other States and Territories:
- The South Australian, Tasmanian and Victorian legislation enables a ‘father’ or ‘mother’ to appoint a testamentary guardian,7 while in the ACT and Queensland any parent or guardian of a minor may appoint a testamentary guardian by will or codicil.8
- The ACT and Queensland legislation also gives greater detail around the powers, rights and duties of testamentary guardians.9
- In Tasmania, a father may appoint a guardian regardless of whether the child’s mother remains living,10 but a mother may only appoint a guardian to act after the death of both her and the father unless a Court is satisfied the father is not fit to be sole guardian.11
- Western Australia is unique as its legislation specifically incorporates the concepts encapsulated in the federal family law legislation. It provides that ‘A person who is appointed…as a child’s guardian has parental responsibility for the child’,12 and permits any ‘person who has parental responsibility for a child’ to appoint a testamentary guardian(s) by deed or will. The definition of ‘parental responsibility’ replicates the definition contained in section 61B of the federal FLA.13
Guardianship vs parental responsibility
Historically, the father of a legitimate child was considered sole guardian under the common law to the exclusion of the mother with few exceptions.14 In England, the 1660 Tenures Abolition Act 12 Car II c 24 gave a father the right to appoint a guardian of his unmarried minor children following his death. This Act was part of the law applicable to the Australian colonies.15
Eventually, the approach to guardianship and custody was modified. Following the enactment of the English Guardianship of Infants Act 1886, new legislation in the Australian jurisdictions introduced the concept of equal guardianship of mother and father, finally giving mothers guardianship of their own children after the death of their husbands and, like fathers, the right to appoint a testamentary guardian.16
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,17 namely powers relating to the child’s long-term welfare18 as well as responsibility for daily care, control and custody.19
The concepts of ‘guardianship’ and ‘custody’ that provide context to the State-based legislation were removed from the FLA with the passing of the Family Law Reform Act 1995 (Cth) and replaced with a concept of ‘parental responsibility’.
‘Parental responsibility’ is defined in FLA s 61B to mean ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. Under s 61C, ‘[e]ach of the parents of a child who is not 18 has parental responsibility for the child’.
Parental responsibility can be displaced by a parenting order of the Federal Court and Family Court of Australia (Family Court).20 The effect of such an order is to confer parental responsibility (in the sense of ‘duties, powers, responsibilities or authority’)21 for a child upon a person. A parenting order may deal with a variety of factors, set out in full in FLA s 64B(2).
In all cases, the ‘best interests’ of the child is the paramount consideration.22
The FLA says little about what occurs upon the death of those with parental responsibility.23 Indeed, there is a complex relationship between testamentary guardianship as it exists under State and Territory legislation (except Western Australia), and parental responsibility which is central to FLA Pt VII.
It seems the federal legislation does not ‘cover the field’ with respect to testamentary guardianship – rather, FLA s 4 defines ‘guardian’ to include ‘a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under the law of…a State or Territory’ [emphasis added].24
However, 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.25
Accordingly, a testamentary guardianship appointment could be superseded by a subsequent parenting order. Indeed, this occurred in Gelber v Halliday,26 Parker v Randolph27 and Walsworth & Ahern.28 In Monckton v Viola,29 the Family Court gave sole parental responsibility to the surviving parent, but in a hybrid way made orders requiring the father to consult the testamentary guardian (appointed by the deceased mother) about major long-term decisions and the child’s education.
To the extent that State or Territory-based legislation empowers a parent to appoint a guardian by will to act jointly with the surviving parent of a child, it is arguable that such an appointment could have no effect in the absence of a court order.30
Ultimately, law reform at the federal level would usefully clarify any degree of uncertainty as between the interaction of State and federal legislation in relation to these matters.31 In the meantime, it seems that a testamentary guardian may be appointed but such appointment may be qualified or amended by application to the Family Court for contrary parenting orders. Clients ought to be advised accordingly.
Practical considerations in appointing a testamentary guardian
Notwithstanding the above, it seems clear that a testamentary guardianship appointment is still effective 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.32
The terms of any existing parenting order must always be considered.33
As to purported appointments which are joint with the surviving parent, testators ought to be advised that their testamentary guardianship appointments may not be upheld if challenged by a surviving parent. If it is correct that a guardian in this circumstance has no effectual powers in the absence of a court order, where matters are complex or likely to become contested it will likely be appropriate for the guardian to apply to the Family Court for an appropriate parenting order.34 Specialist family law advice ought to be obtained at the relevant time.
As to the choice of guardian, this ought to be dictated by the best interests and needs of the child. It may be helpful for parents to brainstorm:
- family values;
- the child’s critical needs;
- logistical preferences; and
- available people,
and then match the available people against the first three items.35
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.36
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 a married or de facto couple, if future divorce or separation would add complexity to the ongoing guardianship role.
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.37
Although income or capital can be advanced by a trustee towards the maintenance, education or benefit of a minor beneficiary,38 some expenses borne by the guardian (for example, building or renovating a larger home to accommodate a larger family, or purchasing a larger vehicle for transportation)39 may not be covered. To avoid financial hardship, provision for the guardian could be made in the deceased parent’s will.40 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 deems 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 article 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.
[1] See: Guardianship of Infants Act 1916 (NSW) ss 13, 14, which will be discussed in detail in this paper; 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] See Guardianship of Infants Act 1940 (SA) s 13; Guardianship and Custody of Infants Act 1934 (Tas) ss 4 and 6; Marriage Act 1958 (Vic) s 135.
[8] See Testamentary Guardianship Act 1984 (ACT) s 8; Succession Act 1981 (Qld) s 61C.
[9] Testamentary Guardianship Act 1984 (ACT) s 11; Succession Act 1981 (Qld) s 61E.
[10] Guardianship and Custody of Infants Act 1934 (Tas) s 4.
[11] Ibid s 6.
[12] Family Court Act 1997 (WA) s 71(1).
[13] Ibid s 68.
[14] LexisNexis, Halsbury’s Laws of Australia (online at 28 July 2025) 205 Family Law, ‘Children’ [205-1705]-[205-1710].
[15] Rosalind F Atherton, ‘Testamentary Guardianship and the Reference of Powers over Children: A Problem in Search of a Solution, or Who Gets to Look After the Kids?’ (1989) 3(3) Australian Journal of Family Law 236, 237.
[16] Ibid.
[17] Atherton (n 15) 237; Halsbury’s (n 14) [205-1930]; Craig Birtles, Richard Neal and Caroline Sims, Hutley’s Australian Wills Precedents (LexisNexis, 10th ed, 2021) [7.13].
[18] Halsbury’s (n 14) [205-1925]-[205-1930].
[19] Wedd v Wedd [1948] SASR 104, 106-107 (Mayo J).
[20] Family Law Act 1975 (Cth) s 61C(1) Note 1, (3).
[21] Ibid s 61D(1).
[22] Ibid ss 60CA, 65AA.
[23] Apart from Family Law Act 1975 (Cth) s 65K which applies in specific circumstances.
[24] Family Law Act 1975 (Cth) s 4 ‘guardian’.
[25] Stephanie Lee, ‘Minor children in estate planning in New South Wales’ (2011) 14(5&6) Retirement & Estate Planning Bulletin 71, 73.
[26] [2020] FCCA 1860.
[27] [2007] FamCA 472.
[28] [2024] FEDCFAMC2F 441.
[29] [2010] FamCA 737.
[30] LexisNexis, Mason & Handler: Succession Law and Practice New South Wales (at Service 141) [10,101.1].
[31] Atherton (n 15) 250.
[32] Mason & Handler (n 30) [10,101.1].
[33] Robert Monahan, ‘Testamentary Guardianship of Children’ (2019) 21(5&6) Retirement & Estate Planning Bulletin 46, 50.
[34] Lee (n 25) 72.
[35] ‘Lesson 2’, Choosing a Guardian for your Children (Head & Heart Estate Planning, video series) <https://head-and-heart-estate-planning.mykajabi.com/products/choosing-a-guardian-for-your-children/categories/4785924/posts/16095950>.
[36] de Groots Publishing, de Groot’s Wills, Probate and Administration Practice (New South Wales) (2017) [210.7].
[37] Ibid.
[38] Whether under the powers specified in their deceased parent’s will, the terms of a separate discretionary trust structure, or the relevant trustee legislation.
[39] Hutley’s (n 17) 7.20.
[40] An example is contained in Form 7.05 of Hutley’s (n 17).
