• Custody of child if both parents die

Is it possible for me to pre-decide (via a will or any other way) the legal guardianship/custody of my child in case both me and my wife die in an unforeseen event/accident? What is the procedure?
Asked 2 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu


There is no specific procedure for the same.

But you may execute a affidavit in this regard and on the basis of the said affidavit the person may claim the custody by filing a suit for the same.


Anilesh Tewari
Advocate, New Delhi
17403 Answers
280 Consultations

5.0 on 5.0

In the unfortunate and very unlikely event that both you and your partner pass away leaving children under the age of 18 , you might consider incorporating a “guardianship clause” into your Will.

2)A guardian would have the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions on with whom your child will live and where they will attend school

Ajay Sethi
Advocate, Mumbai
72021 Answers
4333 Consultations

5.0 on 5.0

When, during the British period, testamentary powers were conferred on Hindus, the testamentary guardians also came into existence. It was father's prerogative to appoint testamentary guardians. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.' The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If mother does not appoint, father's appointee will become the guardian. It seems that a Hindu father cannot appoint a guardian. of his minor illegitimate children even when he is entitled to act as their natural. guardian, as S. 9(1) confers testamentary power on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) confers such power on the mother alone.

Section 9, Hindu Minority and Guardianship Act, testamentary guardian can be appointed only by a will. The guardian of a minor girl will cease to be the guardian of her person on her marriage, and the guardianship cannot revive even if she becomes a widow while a minor. It is necessary for the testamentary guardian to accept 'the guardianship. Acceptance may be express or implied. A testamentary guardian may refuse to accept the appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except with the permission of the court

Shubham Jhajharia
Advocate, Ahmedabad
22857 Answers
92 Consultations

5.0 on 5.0

Hi, you and your wife both can execute a legal guardianship WILL in favour of any one .. The WILL shall be probated and the custody shall be given to the beneficiary..

Hemant Chaudhary
Advocate, Gurgaon
4333 Answers
32 Consultations

4.9 on 5.0

Yes, you can pre-decide the legal guardianship of your child in case you and your wife die in an unforeseen event/accident by executing a will. Legal guardian is someone who steps into the shoes of the parent and assumes the parenting role in every facet, just like the parents did. If parents didn’t specify legal guardians for the day-to-day care of their children, and the high court will do so as it automatically acts as upper guardian of children in need of care. In many cases relatives step in and assume the role of caregiver, but if they weren’t specified by the parents, they have to apply to the high court to become the children’s legal guardian.

According to the Child Care Act, if both parents die without a will and there are no relatives or next of kin, the commissioner for child welfare of the area the child lives in will, through a magistrate, appoint someone to take care of the child.

When you choose a natural guardian, you need to make sure it’s someone you trust to take care of your children in the way you would, if not better. The guardian must be able to provide for the basic necessities of the child and create a holistic environment that is conducive to the best interests of the minor child. You have to declare that you are making this will in your full senses and free from any kind of pressure. You have to mention your name, address, age, etc at the time of writing the will so that it confirms that you really are, in your senses.

For further clarification you can talk to me.




Shri Gopal Verma
Advocate, Delhi
211 Answers
2 Consultations

4.0 on 5.0

Dear Client,

Sec 9 of Hindu Minority and Guardianship Act confers power on parents to appoint/decide testamentary guardianship of minor through WILL and father's prerogative to appoint testamentary guardians.

Just execute a WILL and if needed, get it registered.

Yogendra Singh Rajawat
Advocate, Jaipur
16702 Answers
21 Consultations

4.6 on 5.0

1. Yes, the guardianship of the child can be pre determined by way of a Will.

2. With the instructions made in the Will the said person can be applied to be appointed to be guardian of the child in the unwanted situation as you apprehend.

3. To make the Will you can draft the same on your own and get it attested by 2 witnesses. The Will may not be registered.

Devajyoti Barman
Advocate, Kolkata
18598 Answers
266 Consultations

5.0 on 5.0


I wish that, nobody face this situation in their life.

No special provision, just make your will and mention extra clause in that

will, about guardianship, mention a name of that person also in that clause.

It will be in effect after this incident.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

You can bequeath the properties to the minor child and can also appoint a guardian to the minor child to take car of the minor interests in the property bequeathed in his favor during the minority.

T|here is no specific procedure, in the will itself it can be mentioned accordingly.

T Kalaiselvan
Advocate, Vellore
61958 Answers
799 Consultations

5.0 on 5.0

Yes, it is possible under the law.

You please move an application in the concerned family court to allow them to include the name of the guardian in case of any mishappening with you though I pray nothing would get happened like that.

But, really appreciate the concern being a parent.

Sanjay Baniwal
Advocate, South Delhi
5036 Answers
11 Consultations

5.0 on 5.0

YES- as per law of the land , Parents have the option of naming a guardian for their child via a WILL.

- Parents should write a mutual WILL nominating any individual as per their wish .

- When parents don’t leave a WILL or an advance directive regarding the care of their child, the court will decide on a guardian based on the best interest of the child.

- Generally , court give the custody of the child to a guardian the child knows very well.

Mohammed Shahzad
Advocate, Delhi
1615 Answers
26 Consultations

5.0 on 5.0

Near relationship of father will be given guardian ship or you can makeva WILL foe guardian.

Ganesh Kadam
Advocate, Pune
9026 Answers
74 Consultations

4.9 on 5.0

Yes you can make a bill in favour of the minor and authorised some person to take care of the child in case both the parents are not alive to take care of the minor child in case of this bill the child will be the beneficiary and the person authorised to take care of the child will be the custodian of the child as well as property left for the child. This may also be possible by making a trust

Vimlesh Prasad Mishra
Advocate, Lucknow
6199 Answers
19 Consultations

4.9 on 5.0

Yes in this scenario you can decide the guardianship of your child under the Hindu minority and guardianship Act 1956. According to the said act father has power to decide the guardianship of the child  which shall take effect after his death.

Shivendra Pratap Singh
Advocate, Lucknow
5124 Answers
78 Consultations

4.9 on 5.0

Dear Querist

You may appoint the Guardian of your child by yourself after execute your Will which should be registered but the prime concerned will be the welfare of the child, if the person appointed by you are not able to think or do the acts for the welfare of your child then he or she may be changed by the Hon'ble Court.

Feel Free to call

Nadeem Qureshi
Advocate, New Delhi
5413 Answers
262 Consultations

4.9 on 5.0


When the father and mother dies in unfortunate situation the nearest relative will get the custody of the child. By will you cannot fix the guardianship


Shiddhartha Banerjee
Advocate, Calcutta
42 Answers

5.0 on 5.0

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