Meaning of Testamentary Guardian
There was no regulations on guardianship in the ancient and medieval time. During the British rule the courts established the law of guardianship. Finally, a codified law of guardianship was formed called the Hindu Minority and Guardianship Act, 1956. To understand the term ‘Testamentary Guardian” we need to first understand what is a guardian. Any person who is appointed to look after the interests of a child legally appointed by the court or personally appointed by an individual.
Testamentary guardian is appointed by a will to look after the minor child, his property and his best interests even after the natural guardian die. He can act only after the death of natural guardian. If not appointed by a will, the court appoints the guardian who is generally the family members willing to be appointed. Also, the acceptance of the testamentary guardian is important if once accepted he cannot refuse it.
Following persons have the control and authority to appoint a testamentary guardian for the child – (Natural or Adoptive) – A Hindu father, Hindu mother, widowed mother, if necessary courts
Powers vested in Testamentary Guardian
Under the Hindu Minorities and Guardianship Act of 1956 section 9 states the power of a Testamentary Guardian. According to Sec 9 (1) a Hindu natural guardian father has the power to appoint any person to be the testamentary guardian by a will.
Natural Guardian and Testamentary Guardian do they have the same power?
Both the natural guardian as well as the testamentary guardian have the same power (Section 8 of the Hindu Minorities and Guardianship Act, 1956) unless mentioned otherwise in the will by the natural guardian. The guardianship of a girl changes with her marriage. Her husband will be the natural guardian to her (Section 9 (6) of the Hindu Minorities and Guardianship Act, 1956)
Whose appointment will prevail fathers or mothers?
1. Legitimate child– According to section 9 (1) (2) and (3) father can appoint the guardian for the minor child, if the mother is alive then she will be the guardian. The testamentary guardian appointed by the mother will be appointed and the one appointed by father will be ineffective. In case of non-appointment by mother father’s appointee will be the guardian. If the father appoints a guardian and dies and the mother is living then she will be the natural guardian and not the appointee of the father.
2. Illegitimate child– The father has no right to appoint a guardian and the biological mother (under section 9 (4)) being at the position of the natural guardian is entrusted with the power to appoint a guardian even when her husband is alive.
3. In case of married minor girl– Guardianship will cease on her marriage and cannot be revived even she becomes a widow while a minor.
Preference over any relative
The court keeps in mind the welfare and the protection of the party while appointing the guardian. In Ram Chandra v. Sayarbhai, the husband died and appointed his cousin as a testamentary guardian for his wife. The court decided to appoint the cousin as the guardian and vest him the rights even though the father in law of the wife was living. It was because of his ill treatment to his wife.
Alienation of minor’s property
Testamentary guardian can alienate the property required he does so with the permission of the court and for the welfare of the minor. Also this can be done oly in case the property is to be sold.
When does the testamentary guardian act as a guardian of the minor?
The testamentary guardian can act as a guardian only when the testator dies. He can exercise his power in conformity and within the boundary of the will and the act.
Section 39 of the Guardian and Wards Act states the ground for disqualification or removal of the testamentary guardian.
- Ill-treatment towards child
- Abuse of trust
- Incapable of performing his duty
- Acts in anyway against the Act
- Conviction in any case for any offense.
- Having adverse interest
- Insolvency or bankruptcy
- Ceasing to reside within local limits of the jurisdiction of the court
- Fails to perform his duties.
In the present world there are a number of reasons to have a guardian to take care of a married girl child, legitimate child or illegitimate child. Testamentary Guardianship is a significant part of guardianship as it isn’t workable for the common watchmen to be available. Consequently, the testamentary guardian was presented which is one of the type of guardianship which comes to play on the passing of the last enduring guardian or legal guardian of the kid.
This article is authored by Aarcha Gupta, Fourth-Year, B.A. LL.B student at Symbiosis Law School, NOIDA.
Also Read – Custody of Child In Divorce Matters