The legal duty of a grandparent to maintain their grandchild

The legal duty of a grandparent to maintain their grandchild

 

The legal duty of a parent and the liability upon a parents’ deceased estate for the maintenance of their child is a well-established principle in our law. Furthermore, it is well known that common law recognizes that the duty of support of children will, where the parents are absent or unable to provide support, fall upon the maternal and paternal grandparents of the child. The question, however, of whether a grandparent’s deceased estate is subject to the same liability to support their grandchild(ren) remains open.

In the case of Phillipa Susan van Zyl NO v Getz the appellant (represented by a curatrix ad litem) instituted an action for maintenance against her deceased grandfather’s estate. During his lifetime he supported the appellant to the extent that her father did not do so and her mother could not do so. The appellant is a psychiatric patient with bipolar affective disorder, mild intellectual disability, and autism spectrum disorder. Conditions which, according to the appellant, require maintenance in excess of the government disability grant she receives every month. A maintenance claim instituted against the estate of her grandfather was rejected by the executor on the basis of the common law rule stating that the estate of a grandparent has no liability for the maintenance of a grandchild.  The appellant, therefore, sought to have the second common-law rule declared inconsistent with the Constitution, therefore rendering it invalid. Furthermore, the appellant sought that the rule in future be read to include liability against the deceased estate of a grandparent.

The court in this case had to consider whether the common law rules regarding the legal duty to support grandchildren by grandparents should be developed and whether such development is appropriate.  Whether the common law rule should be developed is a question of whether the rule goes against the normative structure of the Constitution. The appellant argued that the rule goes against the right to human dignity and equality in the Bill of Rights and furthermore that the rule does not recognize the principle that a child’s interests are of paramount importance in every matter concerning the child.

The appeal court in this case ruled against the development of the common law rule to include the liability on the estate of a deceased grandparent to maintain their grandchild(ren). It held that such development would contradict the freedom of a testator/ testatrix to distribute the property as they wish. It would open the door wide to uncertainty which will prevail for a long period of time and would furthermore compete with other claims for maintenance against the estate.

Based on the appeal court judgment in Phillipa Susan van Zyl NO v Getz, it is evident that the estate of a deceased grandparent will not be burdened with the liability to provide support for a grandchild. The common-law rule as it stands therefore continues to recognize that parents are the primary caregivers of their child(ren). Only where the parent(s) are unable to fulfill their role as caregiver will such a role be passed on to other family members.

For more information kindly contact Kelly Fourie-Barnard at 044 601 9900 or office@rgprok.com .

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