Testamentary Guardianship Act 1984

The Act’s core legal concepts are the limited class of appointors, the timing rule for an appointment taking effect, the scope of the testamentary guardian’s powers, the separation of daily care from long‑term guardianship, and the overriding role of the Supreme Court.

• Appointor: only a person who is a parent or guardian of the child immediately before death may appoint a testamentary guardian by will or codicil (s 8). An appointment by anyone else is of no effect (s 9). The Act’s definition of parent excludes any person whose guardianship has earlier been abrogated by a binding judgment, decree or order of a federal, state or foreign court that would be recognised by a Territory court (s 4). The Act’s definition of guardian includes guardians appointed under State law, federal or State court orders, and guardians under foreign laws or orders that would be recognised by Territory courts, but excludes certain public officeholders (the director‑general responsible for the Children and Young People Act 2008 and Ministers who are guardians by statute) (s 5).

• Testamentary guardian: defined as a guardian appointed under s 8 (s 6, dictionary). Once the appointment takes effect, the testamentary guardian has responsibility for the long‑term welfare of the child and “all the powers, rights and duties that are vested by law or custom in the guardian of a child” except the rights and responsibilities for daily care and control (s 11(1)). The Act therefore separates the authority to make long‑term welfare decisions from the authority to perform day‑to‑day parenting.

• Property powers and trustee role: a testamentary guardian may take custody of and manage the child’s real and personal property that is not held by a trustee under a trust, and must hold such property as trustee for the child (s 11(2)(a)-(b)). The testamentary guardian may bring proceedings to give effect to these powers (s 11(2)(c)) and must account to the child when the child turns 18 for the custody and management of the property (s 11(2)(d)). The Act therefore mixes welfare guardianship with fiduciary obligations in relation to non‑trust property of the child.

• Daily care and control: the testamentary guardian does not automatically have the right to daily care and control (s 11(1)(a)-(b)). Subsection 11(3) gives the testamentary guardian those day‑to‑day rights only where, at any time after the appointment takes effect, there is no surviving parent, and no competing custody or guardianship order in force under federal, State, Territory or registered Family Law Act (Cth) mechanisms (s 11(3)(a)-(d)). Where other persons also have guardianship, the testamentary guardian must exercise duties and powers jointly with them (s 11(4)).

• Timing: section 10 establishes the operative time rules. If the appointor is survived by a parent of the child, the testamentary appointment takes effect on the death of the appointor only if the instrument shows the appointor intended it to take effect on his/her death; otherwise, it only takes effect on the death of that surviving parent (s 10(a)(i)-(ii)). If the appointor is not survived by a parent, the appointment takes effect on the death of the appointor (s 10(b)). This creates an express default that preserves a surviving parent’s primary custodial position unless the appointor expressly provides for immediate effect.

• Court oversight: the Supreme Court can be asked to make an appointment take effect immediately (s 12(1)) or to suspend a testamentary guardian’s guardianship where a parent so applies (s 12(2)). The court can make, refuse, or fashion other just orders (s 12(3)), and the Act expressly preserves the court’s full powers to settle disputes, appoint or revoke guardians and to make sole guardianship orders (s 13).

Definitions and cross‑references: the Act relies on the Legislation Act 2001 for some definitions (dictionary note) and cross‑references federal Family Law Act (s 11(3)(c)-(d)) and the Adoption Act 1993 (s 7(2)), embedding the statutory concept of testamentary guardianship into the broader family and succession law framework.

Primary persons affected

• Parents and existing guardians. Only these persons may appoint testamentary guardians by will or codicil (s 8). The Act therefore directly changes the legal options available to parents and existing guardians when planning for the care of minor children upon death. The definition of “parent” excludes a parent whose guardianship has been abrogated by an operative court order (s 4). The definition of “guardian” is wide but excludes certain public officials (s 5(2)).

• Appointed testamentary guardians. A person named in a will as a testamentary guardian receives a suite of long‑term welfare and property powers when the appointment takes effect, subject to the statutory limits on daily care and to court supervision (s 11).

• Children. The rights of children are implicated in the allocation of long‑term welfare responsibility and in the trustee obligations imposed on a testamentary guardian handling the child’s property (s 11(1)-(2)). The child becomes entitled to an accounting for custody and management of property at age 18 (s 11(2)(d)).

Secondary and institutional actors

• Supreme Court of the ACT. The court’s role is central: it resolves disputes under ss 12-13, can make testamentary appointments effective immediately, suspend testamentary guardianship at the application of a parent, and exercise its general guardianship and custody jurisdiction (ss 12-13). Practitioners should anticipate court applications and discretionary outcomes.

• Trustees and trust administrators. The Act distinguishes property held by trustees under a trust from property a testamentary guardian may take into custody (s 11(2)(a)). Trustees who already hold a child’s property retain their role and are not displaced by a testamentary guardian’s property powers.

• Family Law mechanisms. Orders made or registered under the Commonwealth Family Law Act affect whether a testamentary guardian can exercise day‑to‑day care rights (s 11(3)(c)-(d)). Specifically, if an order is registered under s 70G of the Family Law Act, or an order exists that would, under s 60F of that Act, have the effect of an order granting custody, the testamentary guardian will not obtain rights to daily care and control under s 11(3).

• Administrative offices. The Act explicitly excludes from the meaning of “guardian” the director‑general responsible for the Children and Young People Act 2008 and Ministers who are guardians by statute (s 5(2)). Those public officeholders are therefore not persons who may appoint a testamentary guardian under s 8.

Who bears costs and burdens

• Estate planners and lawyers advising parents will need to draft clear testamentary wording to control timing under s 10, and to confirm the appointor is legally competent as a parent or guardian immediately before death (s 8-10). Those drafting wills will bear the drafting and advisory costs.

• Testamentary guardians who take custody of a child’s property assume fiduciary duties and the administrative burden of asset management and a formal accounting when the child turns 18 (s 11(2)(b), (d)). They may also incur litigation costs to enforce powers (s 11(2)(c)) or defend disputes.

• Parents may incur court costs if they apply to the Supreme Court to suspend a testamentary guardian’s appointment (s 12(2)).

• The child’s property may indirectly bear some costs if litigation is necessary to vindicate the guardian’s property powers, because the testamentary guardian is empowered to bring such proceedings (s 11(2)(c)); however the Act does not specify funding for such litigation.

Geographical and temporal scope

• The Act applies to children born inside or outside the ACT and whether born before or after commencement of the Act (s 7(1)). It recognises guardians appointed under foreign law or foreign court orders to the extent those would be recognised by Territory courts under private international law (s 5(1)(c)). This gives cross‑jurisdictional reach for guardianship status while preserving local court supervision.

Rights conferred on a testamentary guardian

• Long‑term welfare responsibility: upon the appointment taking effect, the testamentary guardian “has responsibility for the long‑term welfare of the child” and “all the powers, rights and duties that are vested by law or custom in the guardian of a child”, except daily care and control (s 11(1)). This grants a broad bundle of guardianship powers in relation to long‑term matters affecting the child.

• Property custody and management powers: the testamentary guardian “may take into his or her custody, and may manage, the real and personal property of the child (not being property held by a trustee under a trust) until he or she ceases to be the guardian of the child” (s 11(2)(a)). The guardian must hold that property as trustee for the child (s 11(2)(b)) and may bring proceedings to effect those powers (s 11(2)(c)). At age 18 the guardian must account to the child for that management (s 11(2)(d)).

• Day‑to‑day care and control rights: the testamentary guardian does not automatically gain day‑to‑day care and control. Those rights arise only where, after an appointment takes effect, there is no living parent and no custody‑conferring court order in force (including registered Family Law Act orders) , then the testamentary guardian has the rights and responsibilities of daily care and control (s 11(3)(a)-(f)).

• Joint exercise with other guardians: if another person also has guardianship when the testamentary appointment has taken effect, the testamentary guardian must discharge responsibilities and exercise powers jointly with that other person or persons (s 11(4)).

Duties and limitations

• Fiduciary duty in respect of property: the testamentary guardian who takes custody of the child’s property is required to hold the property as trustee for the child (s 11(2)(b)) and to provide an accounting at 18 (s 11(2)(d)). These are express fiduciary obligations that carry legal consequences under general trust law, though the Act does not itself set out procedural detail for accounting or sanction for breach; recourse would be to the courts.

• No authority over property held by trustees: the guardian’s property powers exclude property already held by a trustee under a trust (s 11(2)(a)). That preserves pre‑existing trust arrangements and the role of trust law in managing child property.

• Limited effect while a parent survives: unless the testamentary instrument shows an intention for the appointment to take effect on the appointor’s death, an appointment made by a parent or guardian who is survived by a parent only becomes operative on the death of that surviving parent (s 10(a)). This preserves parental primacy and limits unilateral testamentary displacement of parental custodial authority.

• Subject to Family Law Act and other court orders: a testamentary guardian’s claim to daily care and control is displaced by a range of court orders or registered Family Law Act orders (s 11(3)(b)-(d)). This interlocks with family law jurisdiction and prior custody determinations.

Decision‑making and enforcement remedies

• Litigation to enforce powers: a testamentary guardian may bring proceedings necessary to give effect to his or her powers, including powers as trustee (s 11(2)(c)). This is an express enforcement mechanism for rights under the Act, but litigation costs, funding and the possibility of court‑ordered remedies remain governed by general court procedure rather than the Act itself.

• Supreme Court oversight and concurrent powers: the Supreme Court retains full powers concerning guardianship and custody and can fashion orders that displace, confirm or alter a testamentary appointment (ss 12-13). The court can make the appointment effective immediately, suspend it on application by a parent, appoint alternative guardians or revoke appointments (ss 12-13).

Records, accounting and transitions

• Obligation to account at age 18: the testamentary guardian who takes custody and manages the child’s property must provide an accounting to the child upon the child attaining 18 years (s 11(2)(d)). The Act does not prescribe the form of that accounting, but it establishes an enforceable right of the now adult child to information and recompense as needed via court processes.

The Act does not create criminal offences or prescribe monetary penalties for non‑compliance within its text. The republication note at the front records the penalty unit values current at the republication date, but the Act itself contains no express offences or pecuniary penalties. Enforcement and remedial mechanisms under the Act are civil and court‑based rather than penal.

Primary enforcement mechanisms

• Court proceedings by testamentary guardians: a testamentary guardian is expressly authorised to bring proceedings necessary to give effect to his or her powers, including in fiduciary capacity as trustee for the child (s 11(2)(c)). This is the principal on‑Act pathway for enforcing rights conferred by appointment. Remedies available will be those of the Supreme Court, including declarations, injunctions, orders for delivery or accounting, remedial orders for breach of trust and costs orders, though the Act does not enumerate specific remedies.

• Supreme Court orders and discretion: the Supreme Court has broad supervisory powers. It can adjudicate applications under s 12: a testamentary guardian whose appointment does not automatically take effect on the appointor’s death may apply for an order making it effective immediately (s 12(1)); a parent may apply for suspension of the testamentary guardian’s guardianship until the parent’s death or for another period (s 12(2)). On such applications the court may make or refuse the orders sought and may make such other orders as it thinks just (s 12(3)). Section 13 confirms the Supreme Court’s full non‑derogated powers under guardianship and custody law, including to settle disputes, appoint or revoke guardians, or appoint one of several guardians to be sole guardian (s 13(1)-(2)).

Consequences for fiduciary breach and property mismanagement

• Fiduciary accountability: because the testamentary guardian who takes custody of a child’s property must hold it as trustee (s 11(2)(b)), general equity and trust law will provide the substantive causes of action and remedies for mismanagement, misuse or failure to account. The Act’s accounting requirement (s 11(2)(d)) provides a statutory trigger for judicial scrutiny at age 18.

• No statutory penalty schedule: the Act does not set fines, imprisonment or administrative sanctions specific to breach of testamentary guardian obligations. Enforcement is through court orders and equitable remedies, including potentially orders for restitution, compensation or removal/revocation of guardianship pursuant to the court’s powers under s 13.

Costs and practical enforcement considerations

• Litigation costs and funding: the Act permits litigation but does not provide funding mechanisms or specify who pays costs. Parties applying to the court will expect to bear legal costs unless otherwise ordered. Practitioners should anticipate cost disputes and the court’s discretion on costs orders in contentious guardianship matters.

• Interaction with other court processes: the Act’s cross‑references to the Family Law Act (s 11(3)(c)-(d)) and to the Adoption Act (s 7(2)) mean that enforcement dynamics will often require multi‑procedural planning where family law orders, adoption orders, or child protection proceedings are relevant.

• Administrative oversight excluded: the Act explicitly excludes certain public officeholders from its definition of guardian (s 5(2)), and the Act does not confer administrative enforcement powers on government departments or officers beyond the court’s jurisdiction.

In short, enforcement of duties and redress for breaches under the Act run through civil and equitable processes in the Supreme Court rather than through statutory criminal penalties.

The Act is framed to operate alongside and not to supplant existing family, trust and adoption law. It contains express cross‑references that define its limits and areas of concurrency.

Family Law Act 1975 (Cth)

• The Act relies on Family Law Act mechanisms to determine whether a testamentary guardian can obtain rights to daily care and control. Section 11(3)(c) disqualifies the testamentary guardian from acquiring day‑to‑day custodial rights where “no order relating to the child has been registered under the Family Law Act 1975 (Cwlth), section 70G” is false, i.e. if such a registered order exists the testamentary guardian will not gain daily care. Section 11(3)(d) similarly displaces testamentary guardian day‑to‑day rights where “no order that would, under the Family Law Act 1975 (Cwlth), section 60F have effect for that Act as if it were an order granting custody of the child is in force.” These provisions mean that federal family law orders have primacy in determining custodial day‑to‑day arrangements notwithstanding a testamentary appointment.

Adoption Act 1993 (ACT)

• Section 7(2) lists provisions of the Adoption Act 1993 that are unaffected by this Act, including the Adoption Act’s rules on private international law (s 8 of that Act), general effect (s 43), recognition of Australian adoptions (s 53) and recognition of adoption orders made outside Australia (s 57L). The effect is that adoption law constructs remain operative and have their own recognition rules irrespective of testamentary appointments.

Children and Young People Act 2008 (ACT)

• The Act excludes from its definition of guardian the director‑general responsible for the Children and Young People Act 2008 (s 5(2)(a)). That exclusion prevents a statutory child‑protection official from being treated as a guardian for the purposes of appointment powers under this Act. In practice, child protection interventions under the Children and Young People Act remain autonomous and are not folded into testamentary appointment processes.

State and foreign law recognition

• The Act’s definition of guardian accommodates guardians appointed under State law, federal or State court orders, and guardians under foreign law or order that would be recognised by Territory courts in conformity with common law private international law (s 5(1)(a)-(c)). Similarly, the definition of parent excludes a parent whose guardianship has been abrogated by foreign court order that would be recognised by a Territory court (s 4(b)). This produces cross‑jurisdictional recognition subject to the ordinary private international law rules.

Trust and succession law

• The Act distinguishes property held by trustees under trusts from property that a testamentary guardian may take into custody (s 11(2)(a)). A testamentary guardian cannot displace a trustee; trustees’ duties remain governed by trust law and any relevant trust instrument. Where a testamentary guardian does take custody of property that is not trust property, the guardian becomes a trustee for that property and is bound by fiduciary duties and equity remedies.

Supreme Court and general guardianship jurisdiction

• Sections 12-13 expressly preserve and operate with the Supreme Court’s existing jurisdiction concerning guardianship and custody. The court can make orders to give immediate effect to an appointment, suspend testamentary guardianship at a parent’s application, and exercise all powers to settle disputes, appoint or revoke guardians, appoint sole guardians, etc. (ss 12-13). Practically, this means that testamentary appointments operate within, and are subordinate to, judicial oversight.

Legislation Act 2001 (ACT)

• Definitions such as “child” and terms like “State” and “Supreme Court” are to be read in light of the Legislation Act 2001 (dictionary, notes). The Act’s structure and the republication notes show reliance on the Legislation Act for drafting conventions, commencement rules and definition cross‑references.

Administrative law and ministerial guardianship

• The Act excludes Ministers who are statutory guardians in their official capacity from the definition of guardian (s 5(2)(b)). This preserves the separate administrative law processes for ministerial or departmental guardianship roles and prevents those public functions from supplying a source of testamentary appointment power.

Overall, the Act is designed to slot into a pre‑existing web of family, trust and administrative law, giving testamentary guardianship a defined and limited operation: it interacts closely with (and yields to) Family Law Act orders, adoption law, trust instruments and Supreme Court discretion.

The Act was originally enacted as the Testamentary Guardianship Ordinance 1984 (notified 23 July 1984; commenced 23 July 1984) and became an ACT Act on self‑government (11 May 1989) (legislation history, endnote 3). Since enactment, the Act has been amended and the republished text available here includes amendments up to A2018‑42 (Statute Law Amendment Act 2018). The endnotes of the republication provide a chronological log of notable amending instruments and re‑naming/renumbering events; the principal changes and milestones recorded in the Act’s legislative history are:

• 1986-1987: Early amendments by the Children’s Services (Miscellaneous Amendments) Ordinance 1986 and a 1987 Ordinance (Ord1986‑14; Ord1987‑15). The 1987 amendment adjusted provisions that are now reflected in the operative s 11 (see amendment history, endnote 4).

• 1989: Self‑Government (Consequential Amendments) Ordinance 1989 (Ord1989‑38 sch 1), which implemented changes tied to the ACT’s self‑government transition (legislation history).

• 1993: Adoption (Consequential Amendments) Act 1993 made changes to s 7 dealing with the Adoption Act interaction and commenced s 6 of that amending Act on 31 July 1993 (endnote 3).

• 1994 and 1999: Statutory Offices (Miscellaneous Provisions) Act 1994 and Children and Young People (Consequential Amendments) Act 1999 further amended definitions and consequential provisions (endnote 3).

• 2001 & 2007: Significant renumbering and redrafting occurred under the Legislation Act 2001 and the Statute Law Amendment Act 2007 (A2007‑3), which renumbered provisions and relocated several definitions into the dictionary (amendment history, endnote 4).

• 2006-2012: A series of amendments and attempted amendments relating to civil unions, civil partnerships and related definitional matters were proposed or enacted across various Acts between 2006 and 2012 (A2006‑22, A2008‑14, A2008‑20, A2009‑36, A2011‑22, A2012‑40), with some provisions not commencing or later repealed (endnote 3 and amendment history).

• 2018: The Statute Law Amendment Act 2018 (A2018‑42 sch 3 pt 3.34) is the latest recorded amendment in the republished text; sch 3 pt 3.34 commenced on 22 November 2018 (endnote 3).

Administrative republication and editorial amendments

• The republication notes indicate that the Parliamentary Counsel’s Office has authority under the Legislation Act 2001 to make editorial amendments when preparing a law for republication; editorial changes are formal and do not change legal effect but are treated as commencing on the republication date (see "About this republication" front matter). Some earlier renumbering and relocations of definitions into the dictionary arose from such statutory editorial and renumbering processes (endnotes 4-6).

Consequence for practice

• Practitioners should note that the Act’s operational content (the ability of parents/guardians to appoint testamentary guardians, timing rules, property powers and court oversight) has remained intact while drafting and numbering have been tidied across legislative housekeeping instruments. The most recent substantive amendment listed is A2018‑42; users should check the ACT legislation register for any uncommenced or more recent amending instruments not captured in this republication.

For exact citation and chronological details, consult endnotes 3 and 4 of the republished Act which list each amending instrument, notification and commencement particulars.

The republished Act itself does not contain or cite any case law or judicial decisions. There is no litigation history set out in the text or endnotes of this republication. The Act contemplates judicial involvement by making provision for applications to the Supreme Court (s 12) and expressly preserving the Supreme Court’s powers in guardianship and custody matters (s 13), but it does not record decisions, reported cases or precedent interpretation.

Practical implications for litigators and advisers

• Because the Act vests substantial discretion in the Supreme Court (ss 12-13) and interacts with the Family Law Act and trust law, authoritative judicial interpretation will be relevant but is not provided in the statute. Practitioners must therefore rely on general guardianship, custody and trust law principles, as well as any relevant ACT Supreme Court decisions or Family Court/Federal Circuit decisions that address comparable issues (for example, the interplay between testamentary appointments and existing custody orders), but these will need to be researched beyond the Act itself.

• Expectation of court application: the Act explicitly envisages contested or supervisory court involvement. Section 12 allows a testamentary guardian to apply for immediate effect and permits a parent to seek suspension of guardianship. Section 13 confirms the court’s power to appoint, revoke or make a sole appointment. These provisions establish the Supreme Court as the forum for resolving disputes arising under the Act; therefore precedent from the ACT Supreme Court (and, where relevant, higher appellate courts on similar concepts) will eventually form the functional litigation history.

Recommendation for research

• For a full litigation history in practice, a search of ACT Supreme Court decisions, Family Court decisions and reported judgments referencing the Testamentary Guardianship Act 1984 or dealing with testamentary guardianship issues should be undertaken. This Act provides the statutory template; reported cases will show how courts exercise the s 12 and s 13 discretions, how they weigh competing parental and testamentary interests, how fiduciary obligations of testamentary guardians are enforced, and how Family Law Act orders interact with testamentary appointments.

This Act contains multiple specific drafting and procedural traps for practitioners and lay appointors. The following are concrete pitfalls that create legal uncertainty, disputes, or unintended nullity unless addressed in planning.

1. Invalid appointor

• Only a parent or an existing guardian immediately before death may appoint a testamentary guardian (s 8). Appointments by grandparents or other relatives who are not legal guardians are of no effect (s 9). Practitioners must verify the appointor’s legal status as a guardian or parent at the time of death rather than simply relying on familial relationship.

2. Timing default can delay effect

• Where the appointor is survived by a parent of the child, the appointment will not take effect on the appointor’s death unless the will or codicil expressly shows the appointor intended it to take effect on their death (s 10(a)(i)-(ii)). A common drafting omission is failure to include express words making the appointment effective immediately on the appointor’s death, which will leave the appointment dormant until the surviving parent dies. For example, a grandparent who is a guardian but who intends the appointment to operate immediately must use clear language , otherwise the mechanism defers to the surviving parent.

3. Daily care vs long‑term welfare distinction

• The testamentary guardian’s wide powers over long‑term welfare and child property do not include daily care and control unless conditions in s 11(3) are met. A testator who assumes that naming a testamentary guardian will automatically transfer day‑to‑day parenting authority could be mistaken. If parents wish to preserve daily care transfer, ensure either the surviving parent’s consent or that the instrument addresses timing and circumstances recognising s 11(3).

4. Trust property is excluded

• The testamentary guardian cannot take custody of property held by a trustee under a trust (s 11(2)(a)). Where estate planning leaves children’s property in trust (e.g. a testamentary trust), that trustee relationship remains in force and the testamentary guardian cannot usurp trust administration.

5. Joint exercise where other guardians exist

• If other guardians exist when the testamentary appointment takes effect, the testamentary guardian must act jointly with them (s 11(4)). This can produce coordination problems where one guardian lives interstate or overseas, or where guardians disagree. Expect potential litigation under s 13 to resolve deadlocks.

6. Interaction with Family Law Act orders

• Registered Family Law Act orders and orders that would have effect under s 60F displace the testamentary guardian’s right to daily care and control (s 11(3)(c)-(d)). Practitioners must check the Family Law Act register and any interstate orders that may be recognised. Failure to do so could put a testamentary guardian in the position of trying to exercise day‑to‑day functions contrary to an existing order.

7. Exclusion of statutory guardians

• The Act excludes certain administrative figures from the definition of guardian (s 5(2)). If a client expects a department or ministerial official to be treated as a guardian for the purposes of appointing a testamentary guardian, they will be disappointed.

8. Accounting requirement without procedural detail

• The testamentary guardian must account to the child at age 18 for custody and management of property (s 11(2)(d)), but the Act does not detail form, timing beyond age 18, or enforcement mechanisms. Practitioners must advise testamentary guardians to keep contemporaneous records to satisfy future court enquiries because the Act presumes the court’s general equitable jurisdiction to enforce fiduciary duties.

9. Court processes are discretionary and costly

• Sections 12 and 13 give the Supreme Court wide discretion to make or refuse orders, appoint or revoke guardians, and settle disputes. Reliance on court remediation is inherently uncertain and will attract legal costs. Parties should be informed of the real prospect of contested proceedings and the absence of statutory cost allocation rules in the Act itself.

10. Cross‑jurisdictional recognition uncertainties

• While the Act recognises foreign guardianship orders to the extent they would be recognised by Territory courts (s 5(1)(c)), cross‑jurisdictional recognition is governed by private international law principles. Practitioners should not assume automatic recognition of overseas guardianship arrangements without checking legal compatibility and enforceability in the ACT.

In practice, the principal “gotchas” reduce to: (a) incorrectly assumed appointor status; (b) omission of express timing words in the testamentary instrument; (c) confusing long‑term welfare authority with day‑to‑day parental authority; (d) failure to coordinate with existing trustees and registered family law orders; and (e) underestimating the likelihood of court involvement and the attendant costs and evidentiary burden.

For solicitors, estate planners, guardians, and compliance officers advising clients, the following checklist sets out concrete steps and documents to prepare and review to ensure appointments operate as intended and to reduce the chance of contest or nullity.

1. Confirm appointor status immediately before death

• Verify that the testator is either a parent of the child or an existing guardian in law (s 8 and s 5). This requires documentary proof of guardianship where applicable: court orders, State guardianship instruments, or equivalent foreign guardianship documentation that would be recognised by Territory courts (s 5(1)). Do not assume familial title suffices.

2. Draft explicit timing language

• To avoid the default in s 10(a)(ii) (appointment deferred until death of surviving parent), include clear testamentary wording showing the appointor’s intention that the appointment take effect on the appointor’s death if that is desired. Suggested practice is to use unambiguous operative language such as “I appoint X to be the guardian of Y, and this appointment shall take effect upon my death” (but tailor wording to client instruction and confirm legal effect).

3. Check for competing orders and register searches

• Conduct searches for any custody or guardianship orders in force (federal, state or territory courts) and for Family Law Act registered orders (s 11(3)(b)-(d)). If orders exist, advise clients that a testamentary guardian will not obtain day‑to‑day care rights while such orders remain in force.

4. Coordinate with existing trust arrangements

• Ascertain if any child property is held in trust. A testamentary guardian may not take custody of property held by a trustee (s 11(2)(a)). Where trustees are in place, plan estate and guardianship arrangements to ensure intended management and accountability.

5. Consider court‑directed immediate effect where necessary

• If the appointor wishes a testamentary guardian’s appointment to take effect despite the survival of a parent, and if the instrument wording is unclear or will be challenged, consider advising an application under s 12(1) for the Supreme Court to make the appointment effective immediately. Conversely, advise parents that they may apply under s 12(2) to suspend a testamentary guardian’s appointment.

6. Record and preserve financial and management records

• Testamentary guardians should be advised to keep detailed records of any property taken into custody and any management decisions, since they are required to account to the child at age 18 (s 11(2)(d)) and may be subject to equitable remedies for breach of the trustee duties implicit in s 11(2)(b).

7. Prepare for joint guardianship scenarios

• If other guardians exist (for example, a surviving parent or person with court‑granted guardianship), advise the testamentary guardian of their obligation to act jointly (s 11(4)). Consider including dispute resolution mechanisms in estate planning where possible and advising potential guardians to agree on a framework for decision‑making ahead of time.

8. Advise on fiduciary obligations and capacity

• Make clear to appointors and to named guardians the fiduciary nature of property custody and the likely expectations of the Supreme Court for prudence, record‑keeping and accountability. Also advise on the importance of capacity at the time of making the will or codicil.

9. Consider cross‑jurisdictional effects

• Where children, guardians or property are overseas, obtain legal advice on recognition of foreign guardianship orders and on the consequences of private international law. The Act recognises foreign guardians to the extent Territory courts would recognise them (s 5(1)(c)).

10. Update wills and related instruments

• When acting for clients with children, ensure testamentary documents are updated to reflect the client’s express intentions regarding guardianship timing, specify any limitations, and coordinate beneficiary and trustee provisions to avoid conflicting signals about who should manage a child’s property.

11. Client communication on likely court involvement and costs

• Inform clients that court applications are available but discretionary (ss 12-13), and that contested guardianship matters are likely to attract legal costs, evidentiary requirements and judicial discretion as to outcomes and costs orders.

12. Consider policy interactions

• Advise clients that the Act does not override adoption law or Family Law Act mechanisms (s 7(2), s 11(3)), and that public officials who are guardians by statute are excluded from the Act’s appointor definition (s 5(2)).

Practical drafting tips

• Use plain but formal language stating the appointor’s express intention as to timing, powers and any limits on the testamentary guardian’s authority.
• If the appointor wants the guardian to manage property, include explicit terms about the nature of property to be managed and whether that property is separate from any trust instrument.
• Consider making provision for contingency appointments and for the appointment of trustees if property administration is expected to be substantial.
• Encourage potential testamentary guardians to obtain their own legal advice so they understand fiduciary duties and the likely requirement to provide an accounting at age 18.

By following this checklist advisers can reduce the common sources of invalidity and dispute identified in the Act , namely, incorrect appointor status (s 8-9), wording omissions that delay effect (s 10), failure to coordinate with Family Law Act orders (s 11(3)), and inadequate record‑keeping for fiduciary accountability (s 11(2)(b), (d)).