For parents of minor children, naming a guardian in your will is one of the most important decisions you can make. However, many parents in Victoria are surprised to learn that a guardian
appointment is not always final, and that divorce or separation can affect how these appointments work.
This article explains what it means to appoint a guardian in a will, when the appointment is legally binding, and what happens if parents are separated or divorced.
What Does It Mean to Appoint a Guardian in a Will?
In Victoria, a guardian is the person you nominate to take ongoing parental responsibility for your child if you pass away. This can include decisions about:
- Where your child will live
- Education
- Medical care
- Religious upbringing
It’s important to note that a guardian appointment in a will only takes effect after your death. It does not apply if you become temporarily incapacitated or are away.
Is a Guardian Appointment in a Will Legally Binding?
Yes, but with important limits.
Under Victorian law:
- A valid guardian appointment in a will is legally recognised
- It usually takes effect automatically when a parent passes away
- The appointment is always subject to the best interests of the child
The court has the power to:
- Override a guardian appointment
- Appoint a different guardian
- Impose conditions on guardianship
This usually happens only if there is a dispute, evidence the appointed guardian is unsuitable, or a surviving parent still has parental responsibility.
In short, while a guardian appointment carries weight, it is not absolute.
What Happens If the Other Parent Is Alive?
If the other parent is alive, they will generally retain full parental responsibility, regardless of what your will says. In most situations:
In most cases:
- Your appointed guardian does not replace the surviving parent
- The surviving parent becomes the child’s sole guardian
This applies even if:
- You are separated or divorced
- Your relationship with the other parent is strained
- You believe the other parent may not be the best choice
The court prioritises maintaining a child’s relationship with their surviving parent unless there are serious concerns about the child’s welfare.
What About Divorce or Separation?
Divorce does not remove parental responsibility. Parenting orders may affect who the child lives with but not guardianship after death. A will cannot override a surviving parent’s legal rights
A court may only consider overriding the surviving parent in limited situations, such as:
- Abuse or neglect
- Family violence
- Serious substance abuse
- Inability or unwillingness to care for the child
In those cases, the court may consider the guardian named in the will but it is not automatic.
Can You Appoint a Guardian If Both Parents Die?
Yes, and this is where guardian appointments are most powerful.
If both parents die or the surviving parent dies later
Then:
- The guardian named in the last surviving parent’s will usually take effect
- The court will generally follow the will unless there is a strong reason not to
This is why both parents should have wills, even after divorce.
Common Mistakes Parents Make
- Assuming a will can override the other parent’s rights
- Not updating a will after separation or divorce
- Naming a guardian without naming a backup
- Not explaining their decision to family members
Appointing a guardian in a will is essential, but not absolute. It works best when it’s part of a broader estate plan that considers surviving parents, family dynamics, and the child’s best interests.
