Testamentary guardianship — appointing a guardian for your child in your will

If you have parental responsibility and your child is under 18, you can appoint someone to look after them if you die. This is a testamentary guardian, and it is governed by section 5 of the Children Act 1989.

REVIEWED BY: Sean McNamara on 2026-09-01

What a testamentary guardian is

A guardian you appoint in your will (or in another signed, dated written appointment) to act for your child if you die while they are under 18. "Testamentary" just means "appointed by will".

The key rules

You must have parental responsibility to appoint a guardian (CA 1989, s5(3)). Mothers always do; fathers do if married to the mother at birth, named on the birth certificate (post-2003 registrations), or via parental responsibility agreement/order.
The appointment takes effect only in specific circumstances. A guardian appointed by one parent normally takes on parental responsibility only if no other person with parental responsibility survives at the death (s5(7)–(8)). If the other parent survives and has parental responsibility, the child stays with them and your appointed guardian does not automatically step in.
Guardians appointed by two or more parents with PR can act together if both parents die — this is the classic scenario the appointment is designed for.
If there is no guardian, the court can appoint one under s5 on an application.
You can also appoint a guardian with the court's permission in other situations, and a guardian appointed this way has parental responsibility (s5(5)).

What this means in practice for parents

1. Name a guardian in your will — and name a backup. If you and the other parent both die, your chosen guardian takes on parental responsibility instead of the matter going straight to court. 2. Understand the limit. If you separate and the other parent is alive with parental responsibility, your will cannot displace them. A guardian appointment is about the "last parent standing" scenario — it is not a substitute for child arrangements orders. 3. Consider a letter of wishes. Alongside the appointment, explain your childcare preferences, schooling, religion and family contacts. It is not binding but courts and guardians take it seriously. 4. Talk to the person first. Being a guardian is a major commitment; confirm they are willing and able. 5. Review after major life changes. Update your will after separation, remarriage, or births. 6. Pair with finances. Think about a trust or life insurance so your guardian can afford to care for your child — see a will-writing professional or solicitor.

Where to get help

A solicitor or professional will-writer can draft the appointment correctly.
Coram Child Law Advice explains testamentary guardianship: https://childlawadvice.org.uk/information-pages/testamentary-guardianship/

Official links

Children Act 1989, s5 (appointment of guardians): https://www.legislation.gov.uk/ukpga/1989/41/section/5
Coram Child Law Advice — testamentary guardianship: https://childlawadvice.org.uk/information-pages/testamentary-guardianship/
GOV.UK — wills and appointing guardians: https://www.gov.uk/make-will

This page is general information, not legal advice. Laws, procedures and contact details change — verify anything important against the official sources linked above before relying on it. Your Family Case is an independent information directory and is not affiliated with the courts or gov.uk.

Content verified against the official HMCTS court directory, gov.uk forms and fees pages, and the professional body registers (SRA, FMC, Bar Council). Last reviewed September 2026.