decide on custody
Not all Wills require the appointment of a Guardian, especially if there are existing arrangements within the family. Often, the details of the guardianship will come later in the will, but it is more practical to deal with them alongside the appointment of executors and trustees. Whilst guardians are legally responsible for the children, this does not necessarily mean that the children must live with them. In the Marriage Act 1958 it is stated that the appointment of a guardian with the current or former spouse occurs mainly in separate households.
In the event of a dispute over guardianship, the Family Court under the Family Act 1975 will be the final decision maker. The court may ignore the testator's preferences, even if they are explicitly mentioned in the will. However, an appointed guardian can represent the testator's views and will usually honour their wishes. The appointment of a guardian in a will is especially important in situations where family tensions or divorce may lead to custody disputes.
In addition, the testator should discuss potential guardianship arrangements with the older children, as children aged 12 or over usually have a say in family court unless there are special circumstances that dictate otherwise.
Responsibility for becoming a guardian
Choosing a guardian is more than just naming a person in a will. The person making the will should ensure that the potential guardian is aware of and accepts this responsibility, which may be both emotionally and financially demanding. For those under the age of 18, there should be appropriate child support provisions in the will.
If there is no express provision in the will, the provision allows for the use of half of the estate or a specified amount (whichever is higher) for child support. The testator should ensure that sufficient funds are available for child support and that the trustees are able to invest wisely to maximise the growth potential of the funds.
Balancing the financial interests of guardians and children
Sometimes it may be necessary to enhance a guardian's residence to accommodate a child. The testator should decide whether such enhancements should be funded as a loan or an outright gift. Striking a balance between providing a nurturing environment for the guardian and protecting the child's future legacy is essential.
For large estates, one solution may involve the trustee purchasing a residence for the guardian to use while the children are minors. Otherwise, it is more feasible to consider a loan or unsecured loan than having the estate partially own the guardian's property, which could lead to potential capital gains tax issues.
Communication is key
After choosing a trustee, the testator should trust them to fulfil their duties appropriately. An open dialogue between guardians, trustees or family members ensures that the best interests of the child are always given priority, taking into account various factors such as education and religious upbringing.
In short, drafting a will requires careful thought and counselling, especially when appointing a guardian for a minor. This guide helps will makers navigate the complexities and ensure that their wishes are upheld and the well-being of children is safeguarded. If you have any questions, please contact the experienced team at Chua Hing Wai & Co, pleaseclick hereLearn more, orContact UsOffice. Address Level 2, 262 Queen Street, Melbourne 3000, Phone 96023988
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