What Malaysian parents should know about appointing a guardian in a Will

When you have young children, one of the most important decisions in preparing your Will may be:

“Who should I appoint as guardian of my child?”

You may assume that once you name someone in your Will, the matter is settled.

But what happens if you die and your child’s other parent is still alive and disagrees with your choice?

A Malaysian High Court case shows why appointing a guardian may sometimes require more than simply putting a name into your Will.

A mother appointed her sister as guardian

In H & Anor v W(F)(2) [2022] 3 CLJ 397, a mother appointed her sister who is the child’s aunt as guardian in her Will.

There was one important complication. The child’s biological father was still alive.

His name was not stated on the child’s birth certificate. However, while the mother was alive, he had access to the child and provided financial support.

After the mother died, the aunt cared for the child and obtained a court order giving her guardianship, care and control.

The biological father later went to court. His paternity was established, and he sought guardianship and custody of the child.

The mother had a Will. Why wasn’t that the end of the matter?

Because appointing a guardian in your Will does not necessarily remove the rights of a surviving parent.

Under the Guardianship of Infants Act 1961, a guardian appointed by a deceased parent generally acts jointly with the surviving parent. If there is disagreement, the Court can be asked to decide the appropriate arrangement.

Notably, even though the father wasn’t named on the birth certificate and wasn’t married to the mother, the law still treated him as having equal parental rights once paternity was confirmed.

In this case, the High Court ultimately removed the aunt as guardian of the person of the child and appointed the biological father as the sole guardian. The father and his wife were given custody, care and control, while the aunt was given access to the child.

Importantly, when the Court decides a guardianship issue, its primary consideration is the welfare of the child.

Could this happen in your family?

If you are appointing a guardian for your child in your Will, don’t only ask:

“Who do I trust to take care of my child?”

Ask yourself another question:

“If I die first, could anyone disagree with my choice of guardian or claim the right to care for my child?”

If your answer is “Yes”, “Maybe” or “It’s complicated”, your guardian appointment may deserve closer attention.

For example, this may be relevant if:

• you are separated or divorced from your child’s other parent;
• you are not married to your child’s other parent;
• the other parent has little or no involvement with your child;
• paternity is unclear or disputed;
• you do not want the other parent to care for your child; or
• you expect disagreement within the family over who should care for your child.

These situations may involve more than simply drafting a Will. Family law and estate planning may overlap.

Don’t leave the difficult question until after you are gone

You may believe:

“I’ve appointed my sister as guardian, so I know who will take care of my child.”

But if your child’s other parent is still alive, the legal position may not be that simple.

A guardian appointment in your Will is important, but it is not absolute.

The better time to identify a potential problem is before your Will is finalised, while you can still explain your family circumstances, understand the legal position and make informed decisions about your child’s future.

Before finalising your Will, ask yourself:

If I am no longer here tomorrow, is my child’s guardianship really as straightforward as I think it is?

If the answer is “I’m not sure”, that may be the question worth resolving now.

This article summarises a reported court decision for general awareness. It is not legal advice, and every family’s situation is different. Consult a lawyer to assess your situation.

About the Author: Ho Yi Yern

Ho Yi Yern is an Advocate & Solicitor of the High Court of Malaya, Partner and Head of Family Law, Succession & Estate Administration in Messrs Azhar & Goh, proud member of Worldwide International Lawyers League (WILL), Malaysian Collaborative Practice Group (MCPG) and International Academy of Collaborative Professionals (IACP), guiding clients through Wills, inheritance, and family-related legal matters. She is dedicated to empowering individuals and families make informed strategic decisions that safeguard their loved ones and preserve their legacy.