Role of Testamentary Guardian in Hindu Law

In Hindu law, a testamentary guardian is one who is appointed by a will. The father of a minor may appoint such a guardian by mentioning it specifically in a will. Earlier, if the father passed away, the testamentary guardian could function based on the will but this has changed now. If a mother survives the father, she becomes the minor’s guardian but not the testamentary guardian. However, if she wants she can appoint a testamentary guardian for her son. The testamentary guardian can be of her choice and not necessarily the same person as appointed by her husband by his will. An important legal point to note is that before the Act of 1956, a mother had no such power to appoint a testamentary guardian for a minor.

Hindu Law: Appointment of Testamentary Guardians by Women

Interestingly, here are some circumstances wherein a mother can appoint a testamentary guardian for the minor even if her husband is alive:

• If her husband coverts to another religion
• If her husband renounces material life and becomes a sanyasi
• If there are illegitimate children involved
• If the husband has renounced Hinduism

Hindu Law: Powers of a Testamentary Guardian

Other important legal facts pertaining to the powers of a testamentary guardian under Hindu law are:

• A testamentary guardian’s powers and rights cannot exceed that of a natural guardian.
• A testamentary guardian for a female minor ceases to be the guardian once the latter is married because from then, her husband becomes her guardian.
• Restrictions on the powers and rights of a testamentary guardian can be specified in the will itself.

Remember, the powers of a testamentary guardian in Hindu law is defined by the testator’s will.