In the series of Wills as an Estate Planning tool, Dr Japie Coetzee looks at the issue of appointing a guardian or guardians for minor children.

Guardianship can be defined as a legal relationship in which an individual or co-persons are appointed by a court to take care of the needs of a minor child.

The functions of a guardian include administering and safeguarding a minor’s property, assisting a minor child in administrative, contractual, and legal matters, and giving (or refusing) any consent required by law in respect of a child’s marriage, adoption, departure or removal from the country and the alienation of any immovable property of the child.

There are five types of guardianship: 

Guardianship of a marital child
This is where both parents are married to each other they are the natural and legal guardians of their children. If one parent should pass away, the surviving parent remains as the sole guardian of the children.

Guardianship of an extra-marital child
This vests automatically in the mother. The natural fathers of children who are not legally married to the mothers of their children can apply to the court for guardianship rights.

Guardianship of an adopted child
This is deemed for all purposes to be the marital (legitimate) child of their adoptive parent as if the child had been born of those parents during the existence of a lawful marriage. The adoptive parent (or the survivor) will thus also have guardianship rights to the child.

Guardianship after divorce or separation
In this case the court may make an order it considers fit in regard to the guardianship of a minor child. Although courts are generally reluctant to interfere with the vesting of guardianship, particularly given that both parents enjoy equal status as joint guardians, a court has the power to appoint a specific guardian where in its opinion it would be in the interest of the child.

Guardianship of an orphaned child
There are two ways in which a successor guardian can be appointed: nomination in terms of a Will or appointment by the High Court.

Nomination in terms of a Will
The natural guardian(s) of a child nominate someone in terms of their Will to act as guardian, whom the court will then appoint unless such person is unwilling or unable to perform these duties. The appointment of a guardian in terms of a Will is merely a wish and the nominated person will have to lodge an application to the court to be appointed as guardian.

Appointment by the High Court
If both parents die without having appointed a guardian in their Will, the children are frequently looked after by a relative, such as an uncle or an aunt. These persons are not guardians by law and are no more than foster parents until they are appointed as guardians by the High Court.

The duties of a natural guardian are imposed by law and the parent has no choice over being a guardian or not. On the other hand, guardians appointed by the court or nominated in a Will, can choose whether or not they wish to accept the role of guardian.

Make sure you specify a guardian in your Will
It is therefore clear that it is very important to attend to the appointment of a guardian in your Will and by doing so assist the court in appointing the right person as guardian or guardians of your minor children.  

In the next issue we will be looking at the difference between special bequests and the appointment of heirs for the remainder of the estate assets

Article by Dr Japie Coetzee, an Attorney, Notary, Conveyancer, Administrator of Estates and Tax Practitioner specialising in Estate Planning.

Return to main article