Divorce and Guardianship: What Happens to Your Kids If You Don’t Update Your Will?
Divorce isn’t just about dividing assets — it can also have a major impact on the future care of your children if something happens to you. In New South Wales (NSW), any guardianship instructions in your will may no longer align with your current wishes after a marriage ends.
Many parents assume that once custody arrangements are finalised by the Family Court, their responsibilities are complete. However, failing to update your will after a divorce can create serious risks — leaving your children exposed to uncertainty, potential legal disputes, or even decisions about guardianship being made by the courts.
What Is a Testamentary Guardian?
A testamentary guardian is someone you appoint to care for your children if you pass away prior to them reaching 18 years old.
When you divorce, your legal and physical custody arrangements may change — but your will does not automatically update to reflect those changes. Typically, the surviving parent will be the guardian of any minor children, but that is not always the case particularly if they are unfit or unwilling.
The Guardianship of Infants Act 1916 (NSW) states the following:
1. A father or mother may appoint a Guardian, by deed or their Will, to care for minor children after their test.
2. On the death of a father or mother, the surviving parent is the guardian of any minor children either alone or with any Guardian appointed by the deceased parent. If there is no surviving parent, and no appointed Guardian, the Supreme Court can appoint a Guardian.
3. An appointed Guardian acts jointly with the surviving parent whilst the surviving parent remains alive, or solely if the other parent is deceased.
4. The surviving parent can object to the appointment of the Guardian and can apply to remove the Guardian. If the Guardian considers the surviving parent is unfit to care for minor children, the Guardian can apply to be the sole Guardian.
5. The Supreme Court of New South Wales has an overriding power to remove a Guardian.
6. Guardianship ends when the child reaches 18 years of age.
What Happens If Both Parents Die Without a Valid Guardian Named?
In the unfortunate even that both parents were to die, an no guardian was appointed, it is likely that there would be some person who has “sufficient interest” to care for minor children. However, this can lead to disputes between family members over who should be appointed as guardian.
If no Guardian is appointed, the NSW Supreme Court, via the Family Court or Children’s Court, will determine who should take guardianship. This could be:
· A relative (like a grandparent or sibling)
· A close family friend
· A government body such as the Department of Communities and Justice
The court makes decisions based on the best interests of the child, but that might not align with your personal wishes if those aren’t clearly documented in a valid, up-to-date will.
How to Update Guardianship Provisions After Divorce
To protect your children and ensure your wishes are respected:
· Make a new will after separation or divorce.
· Appoint a new testamentary guardian and explain your reasons if needed.
· Consider informing the appointed guardian and any relevant family members.
· Speak to our Wills and Estates Lawyers to avoid unintended legal consequences.
Protect Your Kids’ Future Today
Divorce changes more than just your relationship status—it can have lasting effects on your children’s guardianship if your will isn’t updated. Don’t leave your kids’ care to chance or the courts. Take control by reviewing and updating your will to appoint the right testamentary guardian who aligns with your current wishes.
Need help? Our experienced Wills and Estates Lawyers are here to guide you through the process and ensure your children’s future is secure. Our experienced Divorce team can also assist with any divorce related enquires, contact them here.
Contact us now for a personalized consultation and peace of mind: Get in touch.
