I've seen multiple situations in TV shows, fictional and nonfictional, where wills or other expressions of post-mortem wishes have been contested for reasons that seemed trivial.

One was a man who named his friends, a successful married couple, who loved and were loved by this child, and who he believed would be better guardians than his parents (the child's grandparents) to be his daughter's guardians, but once he died there was a legal battle over custody as this man's parent, the child's grandparents, thought they could provide a slightly "better" life due to being more wealthy.

Is this enough of an argument? Is a person's dying will not the final say unless extenuating circumstances are proven?

  • 2
    I am pretty sure you cannot bequeath your child to anyone. Suppose the friends didn't want to be the child's guardian? They can't just pass it on to a charity as they could with money they didn't need. The will concerns your worldly goods and assets. Anyway it all depends on how the will is worded. If the wording is too loose then anyone might try to make a claim on it. There are organisations who specialise in predatory acquisition by spotting weaknesses in wills. A trivial example is "I leave everything to the cats' home", when there is a cat's home nearby which the deceased has patronised. Jul 2, 2023 at 18:47
  • @WeatherVane In my example said "friends" most certainly did want the child and were the ones fighting to keep custody.
    – Ethan
    Jul 2, 2023 at 23:08

1 Answer 1


A child is not property, therefore a (deceased) parent cannot transfer ownership. In case the sole custodial parent dies, the court will appoint a guardian for a minor child, and will take into consideration the wishes of the deceased parent, however their primary duty is to protect the interest of the child. It follows from this that objections to nomination of Smith as guardian are more easily sustained, since the requirements for being a guardian (e.g. in Washington) are stricter than the requirements for receiving $100,000. RCW 11.130.090 excludes any guardian who has been "convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian", but such a person is not barred from inheriting property.

There are limited formal grounds for contesting a will: testator mentally incompetence, formal failure of the document, (the laws surrounding signatures and witnesses), no clear indication that the document is intended to be a will, forgery or fraud, undue influence (such as a gun to the head), or mistake (for example, mistakenly believing that their child was dead therefore leaving it all to a neighbor). So it is possible, but not so easy, to contest a will.

Organ donation takes place under separate laws: you can't wait for the probate process to get finished in three months before donating organs.

  • 1
    I never said anything about taking 'ownership' of a child! In the situation I was describing the deceased had legal documentation expressing his wishes for for his best friend's who loved and were loved by this child to take guardianship which they signed after expressing their desire to do so. I also stated that these friends were successful and good people with jo reason to be denied custody. The reason these grandparents gave to contest the willed guardianship was that they were more wealthy than the still successful, well off couple and could therefore provide a slightly "better" life.
    – Ethan
    Jul 2, 2023 at 23:00
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    ...And my question was is that a sufficient argument to challenge the willed guardianship?
    – Ethan
    Jul 2, 2023 at 23:01
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    @Ethan: I think the point is that guardianship simply isn't "willed" in the same way that property is. For property, the will controls, unless someone can show through a challenge that the will does not actually reflect the wishes of the deceased. But for guardianship, the will is more of a suggestion to the court, whose primary consideration is the best interest of the child. Jul 3, 2023 at 3:23
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    @Ethan The guardianship of the child is also not a thing you can transfer at will. Changing the legal guardianship of a child is always a complex legal process. The will to change it from various concerned parties is generally not sufficient.
    – quarague
    Jul 3, 2023 at 13:14
  • A gun to someone's head is duress. But undue influence (which is more subtle, typically involving overcoming the willpower of a marginally competent but weak willed person when isolated by the person who benefits) is by far the predominant basis for will contests. Undue influence is easy to claim, but hard to prove. Still, as you correctly note, in the case of a guardianship, a decedent's wishes are no more than a recommendation that gives first priority all other things being equal, and can be second guessed by a court in the best interests of the child.
    – ohwilleke
    Jul 4, 2023 at 0:06

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