A testamentary guardian is one appointed by a will. The father of a minor may appoint such a guardian under his will. Formerly on his death, the testamentary guardian could function under the will as guardian of the minor even though the minor’s mother might then be alive.
The law on this point has been changed by the Act of 1956. Now, if the mother survives the father, she would be the guardian of her minor child and not the testamentary guardian. Further, the mother too can appoint a testamentary guardian of her own choice when she survives her husband.
The will executed by her would be given effect to; but if she does not appoint any testamentary guardian, on her death, the testamentary guardian appointed by the father’s will would function from the time of her death. Prior to the Act of 1956 the mother could not appoint a testamentary guardian at all. AH that has been changed now.
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In fact even during the father’s life-time the mother can now appoint a testamentary guardian for the minor children, in case the father becomes disentitled to act as guardian, e.g. by renouncing Hinduism or becoming a Sanyasin.
So far as illegitimate children are concerned it is only the mother that can appoint a testamentary guardian. Such a testamentary guardian can function as guardian on her death, even though the mother predeceases the putative father.
The powers of the testamentary guardian can in no case exceed those of the natural guardian. These powers can be curtailed by the provisions of the will itself, so the restrictions imposed by the will have to be taken into account.
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Subject to this his powers are those of a natural guardian only. So now under s. 8 he will have to take the prior sanction of the court for leases when the term of the lease exceeds five years or will extend beyond minority for more than a year. Similarly for alienation by way of sale, gift, mortgage, charge or exchange etc. such permission is necessary.
A testamentary guardian for a female minor ceases to be guardian when the minor is married since her husband then becomes her natural guardian.