Australian Capital Territory

testamentary guardianship act 
1984
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Updated as at 10 May 2000
TABLE OF PROVISIONS
Section
	1.	Short title
	2.	Interpretation
	3.	Application
	4.	Appointment of testamentary guardians
	5.	Appointment by persons not entitled to guardianship
	6.	Time when appointment effective
	7.	Effect of appointment
	8.	Applications to Supreme Court
	9.	Powers of Supreme Court
	11.	Repeal—Tenures Abolition Act 1660

An Act to provide for the appointment of testamentary guardians and for related purposes
1 	Short title
	This Act may be cited as the Testamentary Guardianship Act 1984.1
2	Interpretation
(1) 	In this Act, unless the contrary intention appears—
“child” means a person who is not and has not been married, and has not attained the age of 18 years;
“ex-nuptial child” means a child whose mother and father were not married to each other at the time the child was conceived and have not subsequently married each other, not being a child who is a legitimate child, or is to be deemed to be a legitimate child, by virtue of Part VI of the Marriage Act 1961 of the Commonwealth.
(2) 	In this Act, a reference to a parent of a child shall not be read as including a reference to—
	(a)	the father of an ex-nuptial child; or
	(b)	a parent whose guardianship of the child has been abrogated by—
	(i)	a judgment, decree or order of a federal court or a court of a State or Territory, being a judgment, decree or order that is in force; or
	(ii)	a judgment, decree or order of a court in an overseas country, being a judgment, decree or order that is in force and that would be recognized by a court of the Territory in conformity with the common law rules of private international law.
(3) 	In this Act, unless the contrary intention appears, a reference to a guardian of a child (other than a reference to a testamentary guardian) shall be read as a reference to any guardian of the child, whether appointed—
	(a)	in accordance with this Act or a law of a State or another Territory;
	(b)	by a judgment, decree or order of a federal court or a court of a State or Territory; or
	(c)	in accordance with a law of an overseas country or part of an overseas country or by a judgment, decree or order of a court in an overseas country, being an appointment that would be recognised by a court of the Territory in conformity with the common law rules of private international law,
but shall not be read as including a reference to the C&YP chief executive or to a Minister of State of the Commonwealth or of a State or Territory who, under a law of the Commonwealth or of that State or Territory is, in his capacity as such a Minister, the guardian of the child.
(4) 	In this Act, a reference to a testamentary guardian is a reference to a guardian appointed in accordance with section 4.
(5)	In this section—
C&YP chief executive means the chief executive responsible for administering Chapter 2 (General objects, principles and parental responsibility) of the Children and Young People Act 1999.
3 	Application
(1) 	This Act applies in relation to a child—
	(a)	whether he was born in the Territory or elsewhere; and
	(b)	whether he was born before or after the commencement of this Act.
(2) 	Nothing in this Act shall be taken to affect the operation of sections 8, 43, 54 and 55 of the Adoption Act 1993.
4 	Appointment of testamentary guardians
	Each parent and each guardian of a child may, by will or codicil, appoint a person to be a guardian of the child or persons to be guardians of the child.
5 	Appointment by persons not entitled to guardianship
	An appointment of a testamentary guardian of a child by a person who was not, immediately before the person’s death, a parent or guardian of the child is of no effect.
6 	Time when appointment effective
	An appointment of a testamentary guardian of a child takes effect—
	(a)	where the appointor is survived by a parent of the child—
	(i)	if the instrument of appointment shows that the appointor intended the appointment to take effect on his death—on the death of the appointor; or
	(ii)	in any other case—on the death of that parent; or
	(b)	where the appointor is not survived by a parent of the child—on the death of the appointor.
7 	Effect of appointment
(1) 	A testamentary guardian of a child has responsibility for the long-term welfare of the child and has, in relation to that child, all the powers, rights and duties that are vested by law or custom in the guardian of a child, other than—
	(a)	the right to have the daily care and control of the child; and
	(b)	the right and responsibility to make decisions concerning the daily care and control of the child.
(1A) 	Without limiting the application of subsection (1), a testamentary guardian of a child:
	(a)	may take into his or her custody, and may manage, the real and personal property of the child (not being property held by a trustee under a trust) until he or she ceases to be the guardian of the child;
	(b)	holds any real and personal property of the child that comes into his or her custody as trustee for the child;
	(c)	may bring such proceedings as may be necessary to give effect to all or any of his or her powers under this section, including his or her powers as trustee for the child; and
	(d)	is responsible for accounting to the child, when the child attains the age of 18 years, for his or her custody and management of that property.
(2) 	Where, at any time after an appointment of a testamentary guardian of a child takes effect—
	(a)	no parent of the child is alive;
	(b)	no judgment or order of a federal court or a court of a State or Territory granting custody or the right to have the daily care and control of the child (however expressed) to another person is in force;
	(c)	no order relating to the child has been registered under section 68 of the Family Law Act 1975 of the Commonwealth; and
	(d)	no order that would, by virtue of section 60A of the Family Law Act 1975 of the Commonwealth, have effect for the purposes of that Act as if it were an order granting custody of the child is in force, 
then the testamentary guardian has, in addition to the rights and responsibility referred to in subsections (1) and (1A)—
	(e)	the right to have the daily care and control of the child; and
	(f)	the right and responsibility to make decisions concerning the daily care and control of the child.
(3) 	Where—
	(a)	an appointment of a testamentary guardian of a child has taken effect; and
	(b)	another person or persons has or have the guardianship of that child, 
the testamentary guardian shall discharge his responsibility and duties and exercise his powers and rights in relation to that child jointly with that other person or those other persons.
8 	Applications to Supreme Court
(1) 	A testamentary guardian whose appointment does not, by virtue of section 6, take effect on the death of the appointor may at any time apply to the Supreme Court for an order that his appointment take effect forthwith.
(2) 	Where an appointment of a testamentary guardian of a child has taken effect by virtue of subparagraph 6 (a) (i) or subsection (1), a parent of that child may apply to the Supreme Court for an order that the guardianship of the testamentary guardian be suspended until the death of the parent or for such period as is specified in the application.
(3) 	Jurisdiction to hear and determine applications under this section is vested in the Supreme Court.
(4) 	On an application under this section, the Supreme Court may make or refuse to make the order sought, and may make such other orders as it thinks just.
9 	Powers of Supreme Court
(1) 	Nothing in this Act shall be taken to affect the powers of the Supreme Court relating to the guardianship and custody of children.
(2) 	Without limiting the generality of subsection (1), nothing in this Act shall be taken to affect the power of the Supreme Court—
	(a)	to settle disputes in relation to a child between persons having the guardianship of the child;
	(b)	to appoint a guardian of a child;
	(c)	to appoint one of a number of persons having the guardianship of a child to be the sole guardian of that child; or
	(d)	to revoke the appointment of a guardian of a child.
11 	Repeal—Tenures Abolition Act 1660
	Sections 8 and 9 of the Imperial Act 12 Car. 2 c. 24 (the Tenures Abolition Act 1660) cease to have any force or effect in the Territory.

NOTES
1.	The Testamentary Guardianship Act 1984 as shown in this reprint comprises Act No. 34, 1984 amended as indicated in the Tables below.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989  (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also affects references in ACT laws to Commonwealth Acts.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	
Testamentary Guardianship Ordinance 1984	34, 1984	23 July 1984	23 July 1984		
Children’s Services (Miscellaneous Amendments) Ordinance 1986	14, 1986	4 June 1986	26 Apr 1988 (see Gazette 1988, No. S116)	—	
Testamentary Guardianship (Amendment) Ordinance 1987	15, 1987	1 May 1987	1 May 1987	—	
Self-Government (Consequential Amendments) Ordinance 1989	38, 1989	10 May 1989	Ss. 1 and 2:  10 May 1989
Remainder:  11 May 1989 (see s. 2 (2) and Gazette 1989, No. S164)
	—	
Self-Government day 11 May 1989

Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	
Adoption (Consequential Amendments) Act 1993	23, 1993	8 Apr 1993	Ss. 1 and 2:  8 Apr 1993
Remainder:  31 July 1993 (see s. 2 (2) and Gazette 1993, No. 28, p. 800)	—	
Statutory Offices (Miscellaneous Provisions) Act 1994	97, 1994	15 Dec 1994	Ss. 1 and 2:  15 Dec 1994
Remainder:  15 Dec 1994 (see Gazette 1994, No. S293)	Part III
(ss. 4-9)	
Children and Young People (Consequential Amendments) Act 1999	1999 No 64	10 Nov 1999	ss 1 and 2:  10 Nov 1999
remainder:  10 May 2000 (see 
s 2 (2))
	—	

Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

S. 2	am. No. 14, 1986; Act No. 97, 1994; 1999 No 64 s 4 sch 2
S. 3	am. Act No. 23, 1993
S. 7	am. No. 15, 1987
S. 10	rep. No. 38, 1989