Testamentary Guardianship
It is the process whereby a guardian for a minor child is appointed by a person by way of a Will. The person can name anyone who is a major and of sound mind as the guardian of the child, such person can be a close relative, a family member or a friend.

When a person is appointed as a guardian of a minor child by way of a will made by the natural guardians of the minor, that person is regarded as a Testamentary Guardian. After the death of the natural guardian, the testamentary guardian becomes entitled to act as the guardian of the minor child. After becoming the guardian that person can exercise all the powers of a natural guardian to such extent as are specified in the Act and in the Will.
In order to become a testamentary guardian, that person needs to accept the guardianship expressly or impliedly. Once, the person accepts his/her appointment as the guardian he/she cannot refuse to act as a guardian except with the permission of the court.

TESTAMENTARY GUARDIAN UNDER HINDU LAW
In a Hindu family father acts as the natural guardian of his minor legitimate children, and he can appoint a testamentary guardian by way of Will. He can appoint the guardian for his minor children as person or minor’s property or in respect of both.

This appointment made by the father shall have no effect if the father dies before the mother of his minor children; in that case mother will act as the natural guardian but if the mother dies without appointing any other testamentary guardian by way of another Will, then in that case the testamentary guardian appointed by the father will act as guardian.
In case of minor illegitimate children, a mother acts as the natural guardian. Therefore, she has the power to appoint a guardian for her minor illegitimate children by way of a Will.

TESTAMENTARY GUARDIAN UNDER MUSLIM LAW
In Muslim law only father, and in the absence of a father the paternal grandfather can appoint a testamentary guardian. In shia community of Muslims, the father’s appointment of testamentary guardian is considered to be invalid if the Paternal grandfather of the minor is alive. In both the communities of shias and sunnis the mothers cannot appoint appointing a testamentary guardian for her children.

The only exception to this rule is when the will of the children’s father has appointed her as the general executrix. Then she can appoint an executor in respect of her own property which will devolve after the death of her children.
It is to be noted that under Shia Law a non- Muslim cannot be appointed as a testamentary guardian.

POWERS OF TESTAMENTARY GUARDIAN
After the death of the natural guardians, the testamentary guardian becomes entitled to act as the guardian of the minor child.

That person can exercise all the rights and powers of a natural guardian to such extent and subject to such restrictions as are specified in the Act and in the Will.

Therefore, it can be said that the powers of testamentary guardian and the natural guardian are at the same pedestrian but it is subject to the provisions of the Will.

The testamentary guardian is under compulsion by the law to act in the welfare of the minor child whose guardian he/she has been appointed. The guardian has the duty to look after the education of the minor child. A testamentary guardian has the authority to deal with the property of the minor if it is done for the welfare of the minor but it is subject to the restrictions mentioned in the Will.

Powers of Testamentary Guardian is provided in Section 9 of the Hindu Minorities and Guardianship Act, 1956.

QUALIFICATION TO BE A TESTAMENTARY GUARDIAN
Any person can be appointed as a testamentary guardian who is the age of 18 or more. That person can be a family member, a relative, a friend or anyone else who is appropriate to look after the minor child in the eyes of the person appointing him. More than one guardian can be appointed, which proves to be useful in certain circumstances where one of the appointed guardian is unable or unwilling to act.

DISQUALIFICATIONS TO BE A TESTAMENTARY GUARDIAN
In a Judicial pronouncement in the case of Smt. Vinod Kumari v. Smt. Draupadi Devi, the instances of disqualifications from becoming a testamentary guardian were highlighted.

In this case a Hindu Woman approached the court to seek the guardianship of her two sons. Amongst the two, one was the son from her deceased husband’s first marriage and the other son was born out of her own wedlock with the deceased husband. In this case the court observed that the woman is the step-mother of the one from her husband’s first marriage and therefore being a step-mother she can never be a testamentary guardian and in this case, the mother in law of the woman was made the testamentary guardian of her step-son.

Some grounds of disqualification for a guardian are given in Section 39 of the Guardians and Wards Act which are as follows:

  • In situation where the appointed guardian abuses trust or fails to perform his duties as a guardian.
  • When the person appointed as guardian becomes incapable of performing his duties.
  • When the guardian mistreat, neglect or fail take proper care of the minor child, etc.
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