Thinking about what would happen to your children if you pass away is not a comfortable exercise, but it is one many parents quietly worry about. One of the most practical ways to plan for that possibility is to appoint a testamentary guardian in your will.
A testamentary guardian is a person named in your will to help make important decisions for your child if you die before they turn 18. It is not about day-to-day parenting in the sense of school lunches or bedtime routines. Instead, a testamentary guardian steps in to have a legal say on the big issues: education choices, medical treatment, where a child lives, and even whether they move towns or countries. For many families, the role is also about protecting a child’s cultural identity.
There is a common misunderstanding that appointing a testamentary guardian means that person automatically takes custody of your child. That is not the case. You cannot give custody through a will. Day-to-day care is usually worked out through informal family arrangements or, if needed, through a parenting order made by the Family Court. What a testamentary guardian does have, however, is the right to apply to the Court to become the child’s day-to-day carer if that becomes necessary.
The appointment itself is straightforward. The person must be at least 20 years old to be appointed, and you can name only one testamentary guardian in your will. You should choose someone you trust, who understands your values, and who is realistically able to take on the responsibility. While a person named as a testamentary guardian cannot simply refuse the role, they can apply to the Court to be removed if circumstances change and they are no longer suitable.
The Family Court acts as an important safeguard. Its guiding principle is always the best interests of the child. If there is a dispute, or if no guardian has been appointed, the Court can step in and appoint a guardian. Wider family members can also apply to the Court if they believe a child’s welfare is at risk.
For parents who are separated, the situation is slightly different. If one parent dies and has appointed a testamentary guardian, that person generally becomes a joint guardian alongside the surviving parent. Decisions about the child must then be made together, which can provide an extra layer of support and oversight.
Testamentary guardianship highlights why having a will matters, particularly when children are involved. Without a will, families are often left dealing with uncertainty at an already distressing time. Clear instructions can ease tension, reduce disputes, and provide reassurance that your children will be supported by people you trust.
Taking the time now to put a will in place, and to carefully consider who should act as a testamentary guardian, is an important step that parents can take to protect their children’s future.
How can we help?
If you need to prepare a new will, or update your current will, WRMK Lawyers’ experienced team can help. If you’d like advice about your will, relationship property, or estate planning arrangements, our friendly team of experienced local life planning lawyers are happy to help.
This article was first published in the Mahurangi Matters in February 2026.
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