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Weighing up child maintenance against freedom of testation

This article analyses and considers whether South African law should be developed to recognize a grandchild’s right to claim maintenance against a deceased grandparent’s estate. This, however, should not seek to displace the primary obligation of parents to adequately maintain their children. The maintenance claim of a grandchild against a deceased grandparent’s estate would only be enforceable where the grandchild’s own parents for good reason, cannot provide such maintenance.

The right of children to claim maintenance from deceased parents’ estates is well-established in South African law. Whether grandchildren can claim similar rights from their deceased grandparents’ estates is still inconclusive. The courts have not overwhelmingly rejected such claims, nor have they strongly endorsed them.


The question of how far the duty to support children extends came before the Supreme Court of Appeal (SCA) recently, with the matter of Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84 (6 July 2020) raising the question of whether there is a duty on the estate of a deceased grandparent to provide support for a grandchild.


The Law


There are three requirements for a claim of maintenance to succeed: firstly, the claimant’s inability to support himself or herself; secondly, their relationship to the person from whom support is claimed; and thirdly, the latter’s ability to provide support. The common law recognizes that parents are the primary caregivers of their children and imposes on them a duty of support insofar as they are able to do so, until the child reaches the age of majority. Section 18(2) of the Children’s Act 38 of 2005 confirms the common law position. There is, further, a reciprocal duty of support between parents and children. If parents are unable to support their children, other relatives including grandparents, may be ordered to render the same support as the parent.


The Facts


The appellant in this case was the curator ad litem acting on behalf of the child who suffered from the severe psychiatric illnesses of bi-polar disorder and autism. It was agreed that the child would never be in a position to independently take care of herself and hence met the requirements of someone requiring support. The action was brought against the executors of the estate of her late grandfather. The entire estate had been left to the grandmother who had subsequently also died and was thus not a party to the proceedings.


The child’s father had abandoned her and had not paid any maintenance nor complied with the divorce order. The mother was maintaining the child to the best of her abilities and where she could not, the grandfather had fulfilled the obligations of the father and maintained the child. On his death and until the finalization of his estate, the grandfather’s contribution to the child’s maintenance continued. The claim of maintenance was lodged against the estate but was rejected by the executor (the respondent in the matter), leading to the legal proceedings.


The Submissions


The appellant sought an order in terms of s 172(1)(a) of the Constitution declaring that the common law rule that a grandparent’s deceased estate is not liable for maintaining their grandchildren, is inconsistent with the Constitution and thus invalid. The appellant further asked the court to extend the common law to create a duty of support to grandchildren on the deceased estates of grandparents in circumstances where one or both parents are unable to provide support to the child. The argument was based on the minor child’s rights to human dignity and the principle that a child’s best interests are of paramount importance in every matter concerning the child.


The respondent contended that it would be inappropriate to develop the common law in the manner requested and argued firstly, that the specific facts as set out in the stated case did not support these developments. Secondly, that constitutional and public policy considerations point to the values of dignity and freedom in the right of individuals to arrange their private affairs, including how their estate will be dealt with on their demise. Finally, the respondent argued that the proposed development of the common law would go beyond the scope of judicial functions and that any changes to the law governing private relationships should be part of a Parliamentary law reform process.


The Ruling


The court undertook a historical analysis of Roman-Dutch Law in relation to a maintenance claim against a deceased estate and found that the estate of a deceased person did not assume a duty to maintain a grandchild. The court acknowledged the judgement in Carelse v Estate de Vries (1906) 23 SC, that the estate of a deceased parent may be held liable for maintenance of a child, but however agreed with the reasoning of the respondent and dismissed the appeal on three grounds:


  1. The matter was heard in terms of rule 33 of the Uniform Rules of Court. This meant that the court was only called upon to decide the questions of law put forward by the parties in their stated case and had to do so based on the facts agreed to by the parties. On this basis the court found the appellant’s case deficient in that the appellant had failed to take all the necessary steps to track down the father of the child who might well have been able to support the child.

  2. Allowing an extension of the Carelse principle would have a considerable impact on the rules of succession and, if allowed, would impact on the position of the heirs of a deceased grandparent’s estate.

  3. The decision to extend the rule deals with social policy which is an area that Parliament is more suited to deal with.


In conclusion, the SCA’s decision elicits mixed reactions. On the one hand, the court had the opportunity to extend the rights of children regarding support by grandparents, advancing the best interests of the child principle and entrenching the rights of children in our law. This it did not do. In the South African context, the plight of children without maintenance and support is a dire one. On the other hand, the court proceeded cautiously regarding the individual rights of estate planning and administration of such estates, entrenching the established jurisprudence of freedom of testation.


The case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) presented an opportunity for the Supreme Court of Appeal (SCA) to provide the long-awaited clarity regarding a legal question that has been surrounded by uncertainty for decades. Unfortunately, the opportunity was missed. However, the SCA’s approach is not beyond reproach as it could have done more than it did in the interests of justice and legal certainty. The ‘further reason’ for its conclusion is potentially problematic as it may unduly fetter the powers of the courts to develop the common law in terms of ss 8(3) and 39(2) of the Constitution.


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