The challenge of naming a guardian in a will
By Paul Trudelle
In Ontario (as in most jurisdictions), a person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointer: see s. 61 of the Children’s Law Reform Act.
The appointment is only effective if there is no one surviving who is entitled to custody. In Ontario, the appointment is only effective for 90 days, during which time an application for guardianship is usually brought.
Choosing a guardian can be a difficult task. Where there are two parents, a consensus should be reached. (Under the Ontario legislation, where there is more than one appointment, the appointment is only effective with respect to the guardian(s) named in both appointments.)
The will of the recently deceased Beastie Boy, Adam Yauch, contains an unusual clause that may be the result of the difficulty of resolving the question of who to appoint, and the compromises that are sometimes made.
In his will, according to an article on the Forbes website by Deborah L. Jacobs, if Yauch died in an even-numbered year, his parents are to be appointed as guardians of his daughter, with his wife’s parents as backup. If Yauch died in an odd-numbered year, the situation was reversed, and his wife’s parents were appointed guardians, with Yauch’s parents as backup.
Such a clause would only be effective if his wife predeceased him, or died at the same time as Yauch.
Presumably, the terms of Yauch’s wife’s will mirrored these provisions.
An interesting solution to a common issue.
Read Toronto Estate Law Blog
