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Report No. 83

IX. Testamentary Guardianship

Testamentary guardianship.- Testamentary guardianship in England is based on statute. The earliest statute1 was passed in the time of Charles the Second. It conferred power on the father to appoint a guardian by deed or will for an infant upto the age of 21 years. The father himself need not be a major (under the Statute as originally enacted). Later, however, this concession was restricted to deeds2 and only a major can now appoint a guardian by will in England.

The testamentary power was hotly opposed by the King and his officers, while it was dedulously supported by the Church and its dignitaries. Finally, the Church triumphed. Until recently, the Ecclesiastical Courts dealt with all testamentary matters and granted probate. So it was necessary, in the time of Charles II, to have a statute empowering the father to appoint a guardian.

This does not mean that under the Common Law the father had not the right of guardianship, but under the peculiar tenures obtaining in England and the law of primogeniture, the power of the father to appoint a guardian for his heir was resisted till the legislature intervened.3 The power to appoint a testamentary guardian was later given to the mother also (in 1886).

1. Tenures Abolition Act, 1660, 12 Charles II, c. 24.

2. The Wills Act, 1837 (1 Vict., C. 26, section 7).

3. Pollock & Maitland History of English Law, Vol. 2, p. 312.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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