Guardianship in South Africa: What It Means for a Parent's Will

A parent's will can deal with two connected questions:

1. Who should hold guardianship and care responsibilities if no suitable guardian survives?
2. Who should administer money or property inherited by a minor child?

Those are not the same job. A guardian deals with parental responsibilities and major legal decisions. A trustee administers assets in a testamentary trust. An executor administers the deceased estate.

For a complete drafting checklist and a short parent-will request, see our guide to a will for parents with minor children.

What guardianship means

Under section 18 of the Children's Act 38 of 2005, parental responsibilities and rights can include care, contact, guardianship and maintenance. Guardianship includes administering and safeguarding the child's property and property interests, assisting or representing the child in legal and administrative matters, and giving consent for specified major decisions.

Care, residence and guardianship are related but legally distinct. A person who provides day-to-day care is not automatically the only guardian, and a guardian does not automatically become the trustee of a will trust.

When a parent can appoint a guardian through a will

Section 27 of the Children's Act permits a parent who is the sole guardian of a child to appoint a fit and proper person as guardian in the event of that parent's death. The appointment must be contained in the parent's will.

The appointment takes effect after the parent's death and when the nominee expressly or implicitly accepts it. If the will appoints more than one person, the clause should say whether they must act together and what happens if only one accepts.

The section 27 power is framed for a sole guardian. If another guardian survives, a will clause does not remove that person's rights. Separation, limited contact or an informal family arrangement does not by itself prove that the other parent has no guardianship.

Before drafting, confirm:

• Who currently holds parental responsibilities and rights.
• Whether a court order, parenting plan or parental-responsibilities agreement applies.
• Whether the parent is the sole guardian for section 27 purposes.
• Whether the nominee is willing and practically able to act.
• Who should be the substitute if the first nominee cannot act.

How to choose a guardian

The choice should be child-focused. Consider:

• The child's existing relationship with the nominee.
• The nominee's home, health, age and practical capacity.
• Whether siblings can remain together.
• School, language, culture, faith and family relationships.
• Where the nominee lives and whether relocation would be likely.
• The nominee's household and any other children or dependants.
• Whether the nominee has agreed to be considered.

A separate letter of wishes can record routines, medical details, school contacts, faith, culture and important family relationships. It does not replace the will or a court order, but it can help the person caring for the child.

What happens if guardianship is disputed

The current Children's Act allows a person with an interest in the child's care, wellbeing and development to apply to the High Court or children's court for a guardianship order under section 24. This reflects the Children's Amendment Act 17 of 2022, which took effect on 8 November 2023.

The court must consider the child's best interests, the relationship between the applicant and the child, other relevant relationships and any other material fact. If the child already has a guardian, the applicant must explain why that guardian is unsuitable.

The court can request reports and recommendations from the Family Advocate, a social worker or another suitably qualified person. A parent's testamentary wishes may be relevant, but a clause should not be marketed as a guaranteed result in a contested case.

Guardian, trustee and executor

Guardian

The guardian holds parental responsibilities and assists with major legal decisions. A guardian should be chosen for stability, care and the relationship with the child.

Trustee

A trustee administers assets held in a testamentary trust under the will. The nominated trustee may act only after the Master gives written authority. Trustees have ongoing trust, accounting, tax and beneficial-ownership duties.

Executor

The executor administers the deceased estate, deals with debts and tax and transfers the inheritance. The will nominates an executor, but the Master grants authority after death.

One person may sometimes hold more than one role. That should be deliberate, not automatic. A suitable caregiver may not be the best financial administrator, and a careful trustee may not be suitable for daily care.

How a minor's inheritance can be administered

A child under 18 cannot simply be treated as an adult who can independently administer every inherited asset. The will should deal with the child's inheritance rather than only naming the child as beneficiary.

Common routes include:

Testamentary trust

A testamentary trust is created by a valid will and comes into operation after death. The will serves as the trust instrument. The nominated trustees lodge the current requirements and may act only after the Master issues Letters of Authority.

The clause can cover maintenance, education, healthcare, accommodation, trustee replacement, investment, property, accounting and when capital may be distributed. A later distribution age may be suitable, but cost, tax and the child's circumstances need professional review.

The Master currently charges no registration fee for a testamentary trust, but trusteeship, accounting, tax, asset management and professional administration may still cost money.

Guardian's Fund

The Guardian's Fund holds and administers money paid to the Master for minors and other protected beneficiaries. A guardian, tutor, curator or person caring for the child can apply for maintenance using the prescribed forms and evidence.

The Fund is a public protection mechanism. It should not be described as a punishment or as proof that the parent failed. A small cash inheritance may not justify a private trust. A larger or non-cash inheritance may need the flexibility of an appropriately drafted trust.

Assets the will may not control

Retirement-fund death benefits are governed by section 37C of the Pension Funds Act. The fund board identifies dependants and nominees and decides the allocation under that statutory process. A nomination form is relevant but does not turn the benefit into an ordinary will asset.

Policy nominations, jointly held assets and contractual benefits may also follow their own rules. Review the asset ownership and beneficiary nominations with the will rather than assuming that one residue clause controls everything.

Signing the will

The guardian and trust clauses only help if the will is valid. Under the normal Wills Act route:

• The testator must be at least 16.
• The will must be in writing.
• The testator signs at the end and signs or acknowledges the signature while two competent witnesses are present at the same time.
• The witnesses attest and sign in the presence of the testator and each other.
• Neutral witnesses should be used. A beneficiary, beneficiary's spouse or person receiving an office under the will can face section 4A consequences.
• A mark or signature by another person at the testator's direction has additional commissioner-of-oaths requirements.

Keep the original safe and tell the nominated executor where it is. An ordinary certified copy does not simply replace a missing original.

Parent planning checklist

• Confirm the child's existing guardians and any orders or agreements.
• Choose a guardian and substitute after speaking to them.
• Decide whether guardian and trustee should be different people.
• List estate assets, debts and assets governed outside the will.
• Decide whether a testamentary trust is proportionate to the inheritance.
• Set practical support, trustee-replacement and distribution rules.
• Nominate an executor and substitute.
• Sign with two neutral competent witnesses.
• Store the original safely.
• Review after births, adoptions, marriage, divorce, relocation, court orders or changes to a nominee's capacity.

How Wills & Trust can help

Wills & Trust provides intake, factual qualification and referral. It is not a law firm and does not itself draft the will or give guardianship, legal, tax or fiduciary advice. The independent provider must confirm its identity, credentials, drafting scope, any no-charge work and any optional services before the engagement begins.

Quick answers

Can every parent appoint a guardian in a will?

The direct section 27 appointment belongs to a parent who is the sole guardian. A parent who shares guardianship should obtain advice on the current legal position and should not assume that a clause displaces the surviving guardian.

Does a guardian nomination override the child's other parent?

No. Existing parental responsibilities and rights are not privately terminated by the deceased parent's will.

Can the guardian and trustee be different people?

Yes. One role concerns the child and major legal decisions; the other concerns assets held under the trust clause.

Is a testamentary trust always better than the Guardian's Fund?

No. Suitability depends on the amount, asset type, required flexibility, administration period, costs and family circumstances.

Which court can hear a section 24 guardianship application?

The current Act permits an application to the High Court or children's court. Older official webpages that say only the High Court may appoint a guardian predate the 2022 amendment.

Research and official-source check completed 3 August 2026. General information only. This article still requires a named professional review before publication.