Testamentary Guardian

A Testamentary Guardian is a person appointed by a parent through a Will (a testament) to take care of a minor’s person, property, or both, after the parent’s death. This concept is governed by Section 9 of the Hindu Minority and Guardianship Act (HMGA), 1956.

1. Who can appoint a Testamentary Guardian?

The power to appoint a guardian by Will rests with the parents, subject to specific conditions:

• The Father: A Hindu father (natural or adoptive) can appoint a guardian for his legitimate children (person and property). However, this appointment is ineffective if the mother is alive. It only becomes valid if the mother dies without appointing a guardian herself.

• The Mother: * If the father dies before the mother, she becomes the natural guardian, and any appointment made by the father is canceled. She then has the sole right to appoint a testamentary guardian.

  • A Hindu mother can appoint a guardian for her illegitimate children.

• The Restriction: A parent can only appoint a guardian for the minor's separate property, not for the minor’s undivided interest in joint family property.

2. Appointment for Undivided Interest in Joint Family

No. A testamentary guardian (or even a court-appointed one) cannot be appointed in respect of the undivided interest of a minor in a Joint Hindu Family property.

• The Reason: Joint family property is managed by the Karta. Since the minor's interest is fluctuating and not specific until partition, a guardian cannot manage it separately.

• Legal Reference: Section 12 of the HMGA clarifies that no guardian shall be appointed for such interest, as the management rests with the adult members of the family.

3. Powers of a Testamentary Guardian

Under Section 9(5), a testamentary guardian has the same rights and powers as a Natural Guardian, but with one major constraint: they are bound by any restrictions mentioned in the Will.

• Management of Person: They have the right to the custody of the minor and must look after their education and welfare.

• Management of Property: They can perform all acts necessary and reasonable for the benefit of the minor's estate.

• Alienation of Property: Like a natural guardian, they cannot sell, mortgage, gift, or exchange immovable property without the prior permission of the court.

• Will Restrictions: If the Will specifies that the guardian "cannot lease the property for more than 2 years," the guardian must follow that rule, even if the law generally allows 5 years.

4. When does the power end?

The rights of a testamentary guardian cease:

1. When the minor attains majority (18 years).

2. If the minor is a girl, upon her marriage.

3. If the guardian dies or is removed by the court for the minor's welfare.