Selecting a suitable guardian to care for your children in the event of your death is an exceptionally critical decision. It is therefore essential that your will not only outlines the distribution of your assets, but also designates a responsible and trusted adult to assume the role of guardian to your children. However, what if the individual you have nominated either resides overseas at the time of the nomination, or has emigrated after your passing?
Section 27(1)(a) of the Children’s Act (‘the Act’) provides that a parent, who is the sole guardian of a child, is empowered to ‘appoint a fit and proper person as guardian of the child’ in the event of their death. According to section 27(2) of the Act, the appointment of a guardian must be expressly contained in the parent’s will. Apart from these requirements, no restrictions are placed on the appointment of the guardian. The nominated individual will thus acquire guardianship of the child upon the parent’s death, per section 27(3)(a) of the Act, irrespective of their country of residence.
,br>While the Act does not prohibit the appointment of an overseas guardian, there are important considerations to bear in mind. For instance, your nominated guardian must be willing and able to assume guardianship of your children whether they reside in South Africa or overseas. To that end, it might be useful to nominate more than one guardian in case their circumstances change – and to make provision for an amendment to your will.
Further, suppose your family disputes the guardianship nomination and proceeds to litigate. In that case, the High Court, which functions as the upper guardian of all minors in matters involving them, may overturn the nomination if it is in the best interests of your children to remain in South Africa with their existing family. This decision hinges on various case-specific factors, including financial and logistical considerations, whether they have an established relationship with the appointed guardian, or their ability to emotionally and culturally adjust to a new country.
For sound legal assistance with estate or family law-related matters, contact us at info@stbb.co.za.
