Parents making a Will
should always be advised to consider the question of who will look after their
children whilst they are minors. Understandably this is often the most emotive
element of making a Will.
Many people can think
relatively easily about the formalities of their death – music at their
funeral, who gets what item of jewellery, how to share the home but turn to the
question of who will look after their young children and I have often found
myself with a client who genuinely struggles to even verbalise what they
imagine will happen. It is a tough decision but an absolutely necessary one.
A person chosen to
care for minors in a Will is known as a testamentary guardians. The Will gives
them parental responsibility.
Legal Nugget – Parental Responsibility
In England and Wales all mothers automatically
have parental responsibility for their children and since the end of 2003 all fathers
whose name appears on the birth certificate also have parental responsibility.
Parental responsibility is a rather expansive
term but in practice it means the person or persons who have the final say in
what happens to the child. Generally, parental responsibility sits evenly
between the parents – with neither having more of a say than the other. In
practice this may not be the case when issues of residence and Court orders are
involved but for the purpose of this article I am treating parental responsibility
as something shared equally.
Finally, as you will see in this article,
parental responsibility can be acquired in a number of ways by people who are
not the biological parent of a child such as adoption. As such, when using the
word parent I am including anyone who holds parental responsibility for a
On the death of one
parent, parental responsibility continues to rest with the surviving parent but
what happens in circumstances when all those with parental responsibility have
Many people assume
that in tragic circumstances like this family members step in which in practice
is what often happens. However this is not a legal position and leaves the
family in limbo as there would be no one with parental responsibility.
This means that kind
and caring aunt may have significant issues completing official documents –
such as passport applications and school forms or having to make decisions
about medical care – all things where parental responsibility is needed.
In addition, if there
was a dispute within the family about who should be the child’s primary carer
then the Court would need to become involved – which I am sure no parent would
that a testamentary guardian obtains parental responsibility upon the death of
all those with existing parental responsibility. This means that the caring
aunt named in the Will can point to the Will as evidence of her parental
responsibility. No court orders, no family agreements – the Will is sufficient.
Deciding on the need
for such an appointment is the easy decision – the tough one is choosing who. I
have seen a couple nearly break up such was the disagreement about which family
member should be appointed.
The choice of guardian
is an incredibly personal one and will be based on an entirely unique set of
circumstances. The points I would make cover the issues I have come across in
practice. It is in no way the full list of factors:
- Where do you want your child to be raised?
- What parenting approach would you want? Who
would be best able to do this?
- Will your choice have the space and will they
need financial assistance?
- Will your choice want to care for your child?
- Will your choice encourage relationships on
both sides of the child’s family?
- Will your choice be physically able to be a
parent? E.g. how old will the person be when the child reaches 18?
couple living in England pass away. They have Wills with an appointment of a
Guardian – an uncle in Australia where the mother comes from. The child was
born in England and goes to school. He sees is English family regularly.
is nothing wrong with the choice but the consequences will be that he is
unlikely to see as much of his English family or friends and further to the
tragic death of his parents, there will be further disruption by relocating to
another country and culture.
the above situation it would be very important to ensure that the child is
legally allowed to move to Australia and that Australian laws (which are
federal and state) recognised testamentary guardianship. It would also be
sensible for the couple to discuss their decision with both sides of the
If you have young children you should give
serious consideration to the appointment of testamentary guardians. Think
carefully about your choice and if you can you should try and agree on the same
person or people. Even separated couples can usually agree on who they feel
would be the best person to care for their child in the event of their death.
As with all these articles I would stress
that whilst the Will itself is a relatively simple document, the factors to
take into account are relatively complex. The best advice is – use Mundays.
If you wish to discuss your Will needs please get in touch with our Private Wealth Team. If you would like to discuss any issues regarding the care and responsibility towards your children please contact our Family team who have expertise in child matters.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.