For parents of minor children, ensuring that they are taken care of in the event of the parent’s death is an important consideration when drafting a will. A provision in the will that names a guardian for the minor child or children will be given weight by Tennessee courts in determining custody of the child, provided that the court does not deem it outside the child’s best interests. This weight given to the wishes of the deceased parent is statutory under T.C.A. § 34-2-103, which reads:
Subject to the court's determination of what is in the best interests of the minor, the court shall consider the following persons in the order listed for appointment of the guardian:
(1) The parent or parents of the minor;
(2) The person or persons designated by the parent or parents in a will or other written document;
(3) Adult siblings of the minor;
(4) Closest relative or relatives of the minor; and
(5) Other person or persons.
A 2009 decision by the Tennessee Court of Appeals underscores the importance of including such a provision in a will. In In re R.D.M., the court was asked to determine if custody of an orphaned child was properly awarded to the child’s grandparents rather than an aunt and uncle. Both deceased parents in the case had a will that was considered. The father’s will was handwritten and did not name a guardian for the child, but he had a prior will that named the aunt and uncle as guardians. The mother’s named a guardian, but the person named was not a party to the suit and did not seek custody. The father also had a life insurance policy that listed the uncle as the beneficiary, and he left instructions in the handwritten will for the uncle to use the money to take care of the child.
While these facts taken together seem to suggest that the father might have chosen the aunt and uncle to be guardians if he were given the choice between the parties, the court instead upheld the award of custody to the grandparents. In doing so, the court noted that the state of the wills in the case made them an irrelevant consideration. The father’s holographic will rendered obsolete his prior will that named a guardian, and the guardianship provision in the mother’s will had no bearing on either party that was seeking custody of the child at that time.
This case supports three recommendations. First, a parent of a minor child should consider carefully who should be the guardian of their child in the event of their own death, and that preference should be properly recorded in his or her will. Second, parents should endeavor to ensure that their wills agree on who that guardian should be. Third, all persons should consult a reputable attorney about drafting a will instead of writing it themselves in the hope that a court will give it effect when it matters most.
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