A new baby, a serious illness, a long overseas posting, or simply the realisation that a will is long overdue: these are the moments when parents in Springfield, Ipswich and across Queensland start thinking seriously about who would raise their children if something happened to them.
Under Queensland's Succession Act, a parent can nominate a testamentary guardian in their will, giving someone the legal authority to make long-term decisions about a child's care, education and welfare after the parent's death. The appointment does not mean the child automatically lives with that person; it means that person can make important decisions about the child's life.
The Brookwater Legal team helps clients across Greater Springfield and Ipswich with wills and estate planning, including the appointment of testamentary guardians.
Here is how guardianship nominations work in Queensland, and what happens when a will says nothing about them.
Key takeaways
- A parent can nominate a testamentary guardian in their will under Queensland's Succession Act.
- A named guardian makes decisions about the child's life, not necessarily where they live.
- Without a nomination, the courts decide guardianship arrangements when parents disagree.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What does naming a guardian in a Queensland will actually do?
Naming a testamentary guardian in a will allows a parent to appoint a person who can make decisions about a child's long-term care, such as education, religion and lifestyle, according to Legal Aid Queensland. The child does not necessarily live with the named guardian; that question is separate from the appointment itself.
The appointment takes effect at the will-maker's death, but only in specific circumstances. Under Queensland's Succession Act, if the other parent is still alive when the will-maker dies, the appointment only starts at that point if the will shows that intention. Otherwise, the appointment begins only when the last surviving parent dies. Where both parents die, and no Federal Circuit and Family Court of Australia order already says where the child lives, the named guardian takes on daily care of the child.
An existing parent or guardian can apply to the Supreme Court to revoke or suspend the appointment, according to the Succession Act. The Federal Circuit and Family Court of Australia can also resolve disputes about where children live.
Who can make this appointment in Queensland?
A parent or guardian of a child may appoint a testamentary guardian by will, according to Queensland's Succession Act. The appointment only has legal effect if the person making it is a parent or guardian of the child immediately before their own death.
For these purposes, a child is an individual under 18 years of age who is not, and has never been, married, under the Succession Act.
There is no requirement to name a guardian in a will. A will is perfectly valid without one, according to the Queensland Public Trustee. However, leaving no nomination means the question of who has decision-making authority for a child is left unresolved at the most difficult time.
What powers does a testamentary guardian have in Queensland?
A testamentary guardian can make decisions about long-term care such as education and religion, according to Legal Aid Queensland. These are significant decisions that shape a child's upbringing. Day-to-day decisions are different from those long-term guardianship decisions, and the guardian need not be the person the children live with.
The Succession Act makes clear that where the other parent survives, the named guardian shares those obligations with that parent. The guardian does not override the surviving parent.
The authority of a testamentary guardian is also subject to any orders made by the Federal Circuit and Family Court of Australia, which has jurisdiction over parenting arrangements for children in Australia.
When does a testamentary guardianship nomination NOT apply?
Several common situations mean a guardianship nomination in a Queensland will may not operate as the will-maker expected:
- › The other parent is still alive: the appointment generally begins only when the last surviving parent dies, unless the will shows a clear intention for it to start earlier.
- › The child is 18 or has been married: the Succession Act defines a child for these purposes as someone under 18 who has never been married. Once either condition is no longer met, the appointment no longer applies.
- › A family court order already exists: if the Federal Circuit and Family Court of Australia has made a parenting order saying where the child lives, that order governs, not the will.
- › The appointment is revoked or suspended: an existing parent or guardian can apply to the Supreme Court to have the appointment set aside, according to the Succession Act.
- › The will-maker was not the child's parent or guardian at death: under the Succession Act, the appointment has no effect if the person who made it was not a parent or guardian of the child immediately before dying.
Understanding these limits is one reason legal advice matters when a will involves children.
How does a solicitor help with guardianship and wills in Queensland?
Step 1: Talk to us
Get in touch and we will explain how a guardianship nomination works in a will and what the options look like for your family's circumstances.
Step 2: Consider the appointment carefully
We discuss with clients what a testamentary guardian can and cannot do, how the appointment interacts with the other parent's rights, and what happens if the family's situation changes. Choosing the right person involves thinking about skills, willingness, availability and likely family dynamics, according to the Queensland Public Trustee.
Step 3: Prepare the will
We prepare a will that records the guardianship nomination clearly and satisfies Queensland's signing and witnessing requirements, as set out under the Succession Act: the will must be in writing, signed and dated in the presence of two witnesses who are over 18.
Step 4: Review as circumstances change
We advise clients on when to review their will, including after marriage, divorce, the end of a de facto relationship, the birth of a child, or the death of a named guardian. Life changes can affect whether the nomination still works as intended, according to the Queensland Public Trustee.
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What are the common mistakes when naming a guardian in a Queensland will?
The most common issue is assuming that naming a guardian in a will is the same as deciding where a child lives. A testamentary guardian has authority over long-term decisions, but that does not automatically mean the child moves into the guardian's home, according to Legal Aid Queensland.
Another mistake is failing to update the will after a separation or divorce. Under Queensland's Succession Act, a divorce revokes gifts to, and appointments of, a former spouse, as if the former spouse had died first. A will that named an ex-partner as guardian may therefore operate differently after divorce than the will-maker intended. Similarly, a will made before having children may say nothing about a guardian for those children at all.
"A guardianship nomination in a will is one of the most personal decisions a parent can make, and one of the easiest to overlook. Getting it into the will, and keeping it current, is what gives it legal effect."
Jade Kickbusch, Principal, Brookwater Legal
What happens if no guardian is named in a Queensland will?
Where both parents die and no guardian has been nominated, or the nomination has no legal effect, the question of who has authority over the child falls to the courts, according to Legal Aid Queensland. The Federal Circuit and Family Court of Australia can resolve disputes about where children live and who makes decisions for them.
In practice this may mean family members or others with a connection to the child applying to the court, and the court deciding what arrangement is in the child's best interests. That process takes time, involves legal proceedings and creates uncertainty at an already difficult point for a family.
For families in Ipswich, Springfield and Greater Springfield, having a current will with a clear guardianship nomination avoids that uncertainty entirely.
Frequently Asked Questions
Can a grandparent be named as a testamentary guardian in a Queensland will?
Yes. Queensland's Succession Act allows a parent or guardian to appoint any suitable person by will, and there is no rule preventing a grandparent from being named. The person's willingness, availability and capacity to make long-term decisions for the child are the practical considerations.
Does naming a guardian in a will mean the child lives with that person in Queensland?
Not necessarily. According to Legal Aid Queensland, a testamentary guardian makes decisions about long-term care such as education and religion, but the child does not necessarily live with them. Where the child lives is a separate question that may be decided by the Federal Circuit and Family Court of Australia.
What happens to a guardianship nomination in a Queensland will after divorce?
Under Queensland's Succession Act, a divorce order generally revokes gifts to and appointments of a former spouse as if they had died first. A will naming a former spouse as guardian may therefore no longer operate as intended, and a new will is generally advisable after a separation or divorce.
Does a testamentary guardian appointment override the surviving parent's rights in Queensland?
No. Under Queensland's Succession Act, where a surviving parent remains, the named guardian generally shares obligations with that parent rather than replacing them. The appointment typically begins only when the last surviving parent dies, unless the will shows a different intention.
Can a testamentary guardian appointment in a Queensland will be challenged?
Yes. Under Queensland's Succession Act, an existing parent or guardian can apply to the Supreme Court to revoke or suspend the appointment. The Federal Circuit and Family Court of Australia can also make parenting orders that affect where children live, regardless of what a will says.
Do you need a solicitor to name a guardian for your children in a will in Springfield or Ipswich QLD?
There is no legal requirement to use a solicitor to make a will, but the Queensland Government recommends independent legal advice, particularly where children are involved. A solicitor ensures the nomination is worded clearly, satisfies the signing requirements and works alongside the rest of the will. Our wills and estates team acts for families across Greater Springfield and Ipswich.
When should a parent in Queensland review a guardianship nomination in their will?
The Queensland Public Trustee recommends reviewing a will after marriage, divorce, the start or end of a de facto relationship, the birth of a child, a major financial change or the death of a named guardian. Any of these events can affect whether a guardianship nomination still operates as intended.
Your Next Steps
Naming a guardian in a will is one of the most important decisions a parent can make, yet it is also one of the most frequently left undone. Queensland's Succession Act gives parents a clear mechanism to record that appointment, but the nomination only works if the will is properly prepared, reflects current circumstances, and is kept up to date as life changes. For families in Springfield, Ipswich and the surrounding area, a current will with a guardianship nomination removes the uncertainty that comes when no instruction exists.
If you're working through estate planning for your family, the right advice early makes the process simpler. Contact the Brookwater Legal team or call (07) 3437 8555 to talk through where you stand.
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External Resources
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
