23 Mar 2020

Making Provision for Children in your Will

by Kate Oosthuizen, Partner, Durban,
Practice Area(s): Child & Family |

Death is not a topic that we like address even on good days. However, life is regretfully uncertain and, in times such as these, it is important for one to make sure that the interests of loved ones are taken care of in the event of the unthinkable.

In particular, it is imperative to consider the possibility of a child being left without parents or guardians and to take steps to mitigate those consequences.

A starting point is an understanding of the rights of guardianship. Biological parents are generally and automatically the co-holders of parental rights and responsibilities in respect of their children, but for certain exceptions. Included in parental rights and responsibilities are the rights of guardianship as set out in Section 18 of the Children’s Act 38 of 2005. A minor child’s other relatives, either by birth or by marriage (for example, grandparents and stepparents), do not have parental rights and responsibilities and therefore they do not have the rights of guardianship.

In terms of the Act, a person who acts as the guardian of a child must-

  • administer and safeguard the child's property and property interests;
  • assist or represent the child in administrative, contractual and other legal matters; or
  • give or refuse any consent required by law in respect of the child, including:
    • consent to the child's marriage;
    • consent to the child's adoption;
    • consent to the child's departure or removal from the Republic;
    • consent to the child's application for a passport; and
    • consent to the alienation or encumbrance of any immovable property of the child.

Notwithstanding the aforegoing, any interested person may apply to Court to become the holder of parental rights and responsibilities, including guardianship. An interested person will be anyone who has an interest in the care, happiness, security and wellbeing of the child. This person does not have to be a family member, and this application can be brought even though one or both of the child’s parents are alive.

In the event of death, however, a parent can nominate one or more people as guardian of his or her child. This can be done in terms of that parent’s last will and testament and the nomination will only become effective should: the parent die while the child is still minor, and if the nominated guardian accepts the appointment in terms of the will.

Generally, and also if the deceased parent’s will is silent on the matter, the surviving parent automatically becomes sole guardian of the child. The surviving parent will have full parental responsibilities and rights in respect of the minor child.

If another person, other than the surviving parent, is nominated by the deceased parent in his/her will, the surviving parent is usually given preference over the nominated guardian.

However, that is not to say that the nominated guardian cannot still become guardian.

There are no express formalities or process for the acceptance of a nomination when a guardian is appointed in terms of a will. The appointment is by operation of law and the conduct of the nominated person indicates their acceptance of the nomination. The will constitutes as evidence of the appointment.

If there is a surviving parent, the surviving parent would need to consent to the appointment of the guardian nominated in the will.

In the absence of consent from the surviving parent, it is possible to apply to the High Court as the upper guardian of all children, or to the Children’s Court, to become a guardian on the strength of the nomination in the deceased parent’s will. It is also possible to make the application if there is no nomination made in the will. The Court will make an order that it deems to be in the best interests of the child concerned. The court order will be evidence of guardianship.

If the will of the deceased makes no mention of the child’s personal care, and if there is no surviving parent, the child becomes a ward of the State in the absence of an application to be appointed guardian.