Updated 22 October 2026
Wills - Potential Problem #2: Not Naming a Guardian for Minor Children
Naming a guardian in your NSW will gives your family clear guidance about who you want to care for your children if you die while they are under 18. It is especially important when the other parent has died, cannot provide appropriate care, or both parents might die together.
However, a will cannot guarantee where a child will live or override the court’s responsibility to protect their best interests. A sound plan combines a carefully drafted guardian appointment with discussions about practical care, existing parenting arrangements and financial support. These steps can reduce uncertainty when your family needs to make decisions quickly.
What a testamentary guardian does
A person appointed through a will is commonly called a testamentary guardian. The intended role concerns the child’s welfare and upbringing, including education, health and everyday care. It is separate from administering the estate or managing an inheritance.
Legal Aid NSW’s guidance on making a will explains that the proposed guardian can refuse the responsibility. Speak to them before naming them. If a dispute arises, the court considers your wishes but makes orders according to the child’s best interests at that time.
This appointment is also different from an enduring guardian, who makes specified health and lifestyle decisions for you during your lifetime if you lose capacity. Appointing an enduring guardian does not appoint a carer for your children.
A surviving parent and existing parenting orders
A guardian clause does not automatically remove a surviving parent’s parental responsibility. If you want a relative or friend to care for your child instead, obtain advice about the existing arrangements, any safety concerns and whether parenting orders are needed. A statement in your will excluding the other parent is not enough by itself.
There is a specific rule in section 65K of the Family Law Act. Where a parenting order provides that a child lives with one parent, that parent dies, and the order does not address that death, the surviving parent cannot simply require the child to live with them. The surviving parent or another eligible person may apply for parenting orders.
That rule depends on those circumstances. Bring your existing parenting orders to your estate planning appointment so the documents can be considered together.
How a court considers the children
The Federal Circuit and Family Court’s current guidance identifies safety, the child’s views, developmental and cultural needs, carers’ capacity, and the benefit of safe relationships with significant people as relevant considerations. A child’s views matter, but the decision is not simply a choice between competing adults’ preferences.
For Aboriginal and Torres Strait Islander children, additional consideration is given to their right to enjoy their culture, including connections with family, community, Country and language. Explain the relationships and support that matter to your child rather than relying on a generic description of the proposed guardian.
A real NSW case about planning for future care
In In the adoption of Natalie [2021] NSWSC 254, the NSW Supreme Court considered an adoption application by a single prospective parent. The court initially considered her proposed arrangements for the child if she died or became seriously incapacitated too vague.
Further evidence identified proposed testamentary guardians and alternatives, confirmed their willingness to help, and addressed their health, living and financial circumstances. The prospective parent undertook to keep a guardianship appointment current while the child was under 18. The court was satisfied that the adoption should proceed and required evidence of the new will after the adoption order.
The case concerned adoption planning, not a probate dispute after a parent’s death. Its practical lesson is useful for families preparing wills: identify suitable people, confirm their willingness, provide alternatives and keep the arrangements current. It does not mean every parent must apply to court when making a guardian appointment.
Choose someone who can provide the care
Consider your child’s existing relationship with the person, their health, household and willingness to take responsibility for all the children involved. Discuss schooling, medical needs, religious and cultural upbringing, and contact with important relatives. Emotional closeness is valuable, but the arrangement also needs to work in daily life.
Think beyond the immediate future. Grandparents who can manage occasional visits may find full-time care difficult as the child grows. A trusted sibling may have work commitments or children of their own. If your preferred guardian lives overseas, address travel, immigration and parenting requirements before assuming your will authorises relocation.
Name a substitute if your first choice dies, declines or becomes unable to act. If you nominate a couple, discuss what should happen if they separate or only one can accept. Clear drafting helps your family understand your intended alternatives.
Plan separately for the children’s inheritance
The guardian, executor and trustee have different responsibilities. Your executor administers the estate. A trustee manages assets held for your children under the will. The guardian’s care role does not automatically give them control of those assets.
The NSW Government’s executor guide explains that an executor may also act as trustee of a continuing trust. You can consider appointing different people to the care and financial roles, provided they can communicate and cooperate.
Discuss powers to use trust money for housing, education, healthcare and other appropriate support. The will should explain when children become entitled to their inheritance and who manages it beforehand. Giving money outright to the proposed guardian is different from creating a trust for the children.
Guardianship ordinarily concerns children under 18, while a properly drafted inheritance arrangement may continue beyond that age. Include substitute executors and trustees so the financial plan can continue if your first appointees are unavailable.
Where a child has disability or complex care needs, record essential therapies, support arrangements and the people who understand them. Plan separately for adulthood: a testamentary guardian appointment ends when the child turns 18, even if they remain dependent. Adult decision-making support and any suitable trust arrangements require advice based on that person’s needs and capacity.
Why parents should organise the documents early
Research commissioned by NSW Trustee and Guardian surveyed approximately 2,000 NSW adults in July–August 2023. Its October 2024 media release reported that 60% did not have a legal will. This is an adult will-making statistic, not a measure of parents without guardian appointments or the likelihood of a dispute.
A will also does not provide a complete plan for a parent’s temporary incapacity. Keep practical emergency care arrangements and important contacts accessible, and obtain advice about any legal authority the temporary carer may need.
Five steps for a practical guardianship plan
1. Discuss the role. Ask your preferred guardian and substitute whether they are willing and able to provide care. Explain your children’s needs and the financial arrangements you propose.
2. Check existing orders. Give your solicitor any parenting orders and relevant information about the other parent, including safety concerns.
3. Coordinate the will. Record guardian choices, substitute appointments, executors and any children’s trusts in properly prepared documents.
4. Keep useful information accessible. Record school, medical and family contacts, routines and cultural preferences separately. This practical record supports the plan but does not replace the will or court orders.
5. Review after changes. Revisit the appointments after another child is born, separation, a move, illness or changes in the proposed guardian’s household. Tell the appropriate people where your current will is stored.
Get advice before uncertainty becomes a dispute
If a parent has already died and care arrangements are disputed, seek advice promptly. The Court provides guidance about urgent parenting applications; urgency and any exceptions to ordinary preliminary requirements depend on the circumstances.
CM Lawyers’ wills and estates team can help document your guardian choices and financial arrangements. Contact our Marrickville office with your existing will, parenting orders and proposed appointments so the advice addresses your family’s situation.
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