My spouse has died and the in-laws want the children. Who is the guardian?

The death of a parent is hard enough. It can be made harder when grandparents, siblings or a named guardian in a will disagree with the surviving parent about where the children should live, or who controls money left for them. This guide explains the rules in the Guardianship of Infants Act 1961 (GIA).

The GIA applies in Peninsular Malaysia, and applies to Muslims only where a State law has adopted it (s.1). Check which law applies if you are in Sabah or Sarawak or if the family is Muslim.

Who is the guardian after a parent dies?

Mothers and fathers have equal rights over a child's custody, upbringing and property (s.5). When one parent dies, the surviving parent is the guardian, alone or jointly with any guardian appointed by the deceased parent (s.6). If the deceased parent appointed no guardian, or the appointed guardian dies or refuses to act, the court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent (s.6).

What is a testamentary guardian?

A parent may, by deed or will, appoint a person to be guardian of the child after that parent's death (s.7(1)). That guardian acts jointly with the surviving parent. If the surviving parent objects, or the guardian considers the surviving parent unfit to have custody, the guardian may apply to court (s.7(2)). The court may:

• refuse to make an order, leaving the surviving parent as sole guardian;
• order the guardian to act jointly with the surviving parent; or
• make the guardian the sole guardian (s.7(2)).

If the guardian becomes sole guardian, the court may also make orders on custody, the surviving parent's access, and the surviving parent's contribution to maintenance or education according to their means (s.7(3)).

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What if both parents have died?

If both parents die without appointing a testamentary guardian, a Magistrate, penghulu, police officer or Protector (a Social Welfare officer) may bring the child before the court, and the court shall appoint a guardian of the child's person, property, or both (s.8). Relatives such as grandparents often apply.

Can a guardian be removed?

Yes. The court may at any time remove any guardian, including a parent, and appoint another person (s.10). Where joint guardians cannot agree on a question affecting the child, any of them may apply to court for directions (s.19A).

What does the court consider?

The court must have regard primarily to the welfare of the child, and where the child has a parent, consider that parent's wishes (s.11). It may order a person who has the child to produce the child (s.12), and may order a child removed from the lawful guardian's custody to be returned (s.13).

The child's property

A guardian of a child's property must not, without court leave, sell, charge or otherwise part with the child's property, or lease land for more than one year (s.15). Monthly spending above a set limit from the income of the property needs court leave (s.17). A person appointed by the court as guardian of property usually has to give security and account for the money (s.14).

What should I do first?

1. Find the will or any deed naming a guardian.
2. Keep the children's routine stable and record who cares for them day to day.
3. Do not remove the children from the other side by force; apply to court instead.
4. Separate the child's money (insurance, EPF nominations, estate shares) from household funds.
5. Try to agree terms on access and contact with grandparents in writing.

Example

A father dies. His will appoints his sister as guardian. The mother objects to the sister acting with her. The sister applies under section 7(2), saying the mother is unfit. The court looks primarily at the children's welfare and orders the mother to remain sole guardian, with access arrangements agreed for the father's family.

Common mistakes

• Assuming grandparents have automatic rights over the surviving parent.
• Using a child's inheritance for household costs without considering the court-leave rules.
• Ignoring a will's guardian clause, or assuming it overrides the surviving parent.
• Keeping a child away from a lawful guardian.

When to speak to a lawyer

Speak to a lawyer if family members disagree over who should care for the children or control their money. See our family and divorce page; you can also contact us.

Frequently asked questions

Until what age does guardianship last?

The GIA covers an "infant", a person who has not reached the age of majority, which is 18 under the Age of Majority Act 1971.

Can grandparents ask for access?

Relatives can apply to court, and the court decides by reference primarily to the child's welfare.

Does a guardian clause in a will override the surviving parent?

No. The testamentary guardian acts jointly with the surviving parent unless the court orders otherwise (s.7(2)).

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Guardianship of Infants Act 1961 (Act 351), AGC Laws of Malaysia
2. Age of Majority Act 1971 (Act 21), AGC Laws of Malaysia
3. Department of Social Welfare Malaysia (Jabatan Kebajikan Masyarakat)
4. Office of the Chief Registrar, Federal Court of Malaysia (Judiciary portal)

Fact-checked on 17 Oct 2026