Can I Exclude My Ex From Contacting My Children in My Will?

This is the eighth in our series of articles on the uncertainties of death.

The Uncertainties of Death Series

Myth: “I can make sure my ex has no contact with my children through a clause in my Will… Right?”

Wrong!

A Will can allow you to appoint a person as a testamentary guardian for your child. However, this does not necessarily mean that your child will live with that person.

Can I appoint a guardian for my child in my Will?

Yes. In Queensland, a parent or guardian of a child can appoint a person as a guardian by Will.

This is known as a testamentary guardian.

However, the effect of that appointment depends on the circumstances of the child and whether another parent survives you.

Under the Queensland Succession Act 1981, if you are survived by another parent of your child, the appointment will generally take effect when the last surviving parent dies unless your Will shows that you intended the appointment to take effect on your death.

The legislation also provides specific rules about the powers of a testamentary guardian and when that person has authority for the child’s daily care. You can read the current Queensland Succession Act 1981 for more information.

Does appointing a guardian mean my child will live with them?

Not necessarily.

Appointing a Guardian of your infant child doesn’t necessarily mean your child will live with that person.

A testamentary guardian has powers, rights and responsibilities concerning the child’s long-term care, welfare and development.

However, the legislation treats daily care authority separately. A testamentary guardian has daily care authority only where the child has no surviving parent and no other person has that authority under a decision or order of a federal or State court.

This means that simply naming someone in your Will does not allow you to dictate every aspect of your child’s living arrangements after your death.

What happens if the other parent is still alive?

The surviving parent is an important consideration when preparing your estate plan.

If your child’s other parent survives you, your appointment of a testamentary guardian does not automatically give that person day-to-day care of your child.

The situation may also be affected by any existing parenting orders or other court orders concerning your child.

If parents cannot agree about arrangements for their children, the Federal Circuit and Family Court of Australia can make parenting orders dealing with matters such as where a child lives, parental responsibility and schooling. The Court provides further information about parenting orders.

What if there is a dispute about guardianship?

If there is a dispute about guardianship or the effect of a testamentary guardian appointment, it may be necessary for Court Orders to be obtained.

The Queensland Succession Act 1981 gives the Supreme Court specific powers in relation to testamentary guardians.

For example, a person appointed as a testamentary guardian may apply to the Supreme Court for an order that the appointment take effect immediately in certain circumstances.

A surviving parent may also apply to the Supreme Court for an order concerning the appointment.

The Court may make the orders it considers appropriate.

What decisions can a guardian make?

A Guardian will have the ability to make various decisions about the child’s long-term care, welfare and development.

This may include important matters such as:

the child’s education;
the child’s upbringing;
the child’s long-term welfare; and
other significant decisions concerning the child’s care and development.

It is important to distinguish these responsibilities from day-to-day care. The legal authority to make day-to-day decisions depends on the circumstances set out in Queensland legislation.

How should you choose a guardian for your child?

Choosing the “right” Guardian is a decision requiring careful consideration of many matters.

You should consider whether the person you nominate is suitable and willing to take on the responsibility.

You may also want to consider:

your relationship with the proposed Guardian;
their relationship with your child;
their age and health;
where they live;
their values and approach to raising children;
whether they have other children or responsibilities;
your child’s existing relationships with family members; and
the financial resources available to support your child.

Who controls the money left for my child?

Choosing a Guardian is not the same as choosing who controls your child’s inheritance.

A Will usually contains a clause allowing an Executor, rather than the Guardian, to advance money for the child’s maintenance and benefit.

This distinction is important when preparing your estate plan.

You may want one person to have responsibility for your child’s care while another person manages or administers the child’s inheritance through the estate.

What happens to my child’s inheritance?

The arrangements for your child’s inheritance should form part of your broader estate planning.

Your Will can address how assets are dealt with for your child. It can also provide mechanisms for funds to be used for the child’s maintenance and benefit.

The appropriate structure will depend on your circumstances, the child’s age and the nature of your assets.

Can I use my Will to prevent my ex from seeing my child?

A Will is not a simple way to prevent the other parent from having contact with your child.

Existing parental responsibility, parenting orders and the circumstances of the child can affect what happens after your death.

Australian family law focuses on the best interests of the child when courts make parenting decisions. If parents cannot agree, a court can make parenting orders about where a child lives, who makes decisions for the child and other aspects of the child’s care and welfare.

For more information, the Australian Government’s Family Relationships Online guidance on children and family law provides an overview of parenting arrangements and parental responsibility.

Frequently Asked Questions

Can I name a guardian for my child in my Will?

Yes. In Queensland, a parent or guardian can appoint a person as a testamentary guardian by Will. The effect of that appointment depends on the circumstances, including whether another parent survives.

Will my nominated guardian automatically get custody of my child?

No. Appointing a testamentary guardian does not automatically mean that person will have day-to-day care of your child. Queensland law contains specific rules about when a testamentary guardian has daily care authority.

Can my Will stop my ex from seeing my child?

Not simply by including a clause in your Will. Parenting arrangements can depend on parental responsibility, existing court orders and the circumstances of the child.

What happens if my child’s other parent is still alive?

The surviving parent remains an important consideration. The effect of a testamentary guardian appointment will depend on the circumstances and any existing court orders or other legal arrangements concerning the child.

What does a testamentary guardian do?

A testamentary guardian has powers, rights and responsibilities concerning the child’s long-term care, welfare and development. The guardian’s authority should be considered separately from the authority for the child’s daily care.

Who manages money left to my child?

The Executor of your estate may have powers under your Will to advance money for your child’s maintenance and benefit. Your Will should clearly address how your child’s inheritance is to be managed.

Planning for your child’s future

Choosing a Guardian is an important part of estate planning when you have young children.

It is important to think beyond simply naming someone in your Will. You should consider your child’s care, the surviving parent, existing parenting arrangements and how your child’s inheritance will be managed.

You should obtain legal advice to properly prepare your estate plan to address guardianship issues.

A carefully prepared estate plan can help ensure your wishes are clearly documented and that appropriate arrangements are considered for your child’s future.

If you are reviewing your Will or preparing an estate plan for your family, Wakerley Legal’s Wills and Estate Planning team can assist you in considering your circumstances and the appropriate options.

The Uncertainties of Death Part 8: Can a Will Appoint a Guardian for a Child?