01/08/2016
Testamentary Guardians. People often ask me about putting directions in their wills about who should be guardians of their minor children. That is, if you die leaving young children, can you direct in your will who will look after them?
Your will is the document by which you direct who will get your stuff. Your children are not your stuff. Nevertheless, if you have a wish about who should look after your children, your will is an acceptable (and common) document in which to express that wish. Such a wish is not binding on the executor but it is a guide. Family and friends should respect what you have directed.
Any conflict about who should care for the children or who should be allowed to spend time with them would be argued under the Family Law or in some circumstances, Child Protection.
One would expect that a surviving parent who was separated from a "custodial" parent who dies would take care of their children. However, under Australian Family Law it is not an automatic right and in rare cases, the children of a separated parent who dies, might be cared for by a third party. The Court's guiding principle in all these cases is the best interests of the child.
