Cape Town – The Supreme Court of Appeal (SCA) has ruled that the estate of a deceased grandparent has no legal obligation to financially support a grandchild, in the case where the child’s parents are alive.
The court dismissed an appeal application from an appellant who claimed for maintenance from the estate of her deceased grandfather.
The appellant is the recipient of a government disability grant of R1 410 per month and argued that the grant was “insufficient for her needs”.
She claimed she suffered damages at the hands of the executors of her late grandfather’s estate, who failed to recognise her claim for maintenance.
According to court papers, the appellant’s grandfather had left his entire estate, which totalled a net value of R554 799, to his widow.
However, a claim by the appellant for maintenance exceeded the total value of the estate available for distribution.
The executors rejected the appellant's claim for maintenance on the basis that there was no “obligation in law on a grandparent’s estate to maintain a grandchild”.
The appellant alleged that at all times during her grandfather’s lifetime, he was able to maintain her to the extent that her parents, who are divorced, could not do so.
The appellant further sought an order declaring that when parents or their deceased estates are unable to support their children who are in need of support and the grandparents are deceased, there is a duty on the grandparents’ deceased estates, if they are able to do so, to support the grandchildren.
Justice Zondi found the appellant’s case to be deficient. He dismissed the appeal with no order as to costs.
“In my view, the development of the common law in the respects sought by the appellant is not supported by the agreed and assumed facts.
"The appellant seeks a complete change of the common-law rule relating to the liability of the estates of the grandparents for the support of their grandchildren.
“The Constitutional Court... cautioned that where a common-law rule is to be changed altogether, or a new rule is to be introduced, it will usually be better to make a decision only ‘after hearing all
the evidence’ so that ‘the decision can be given in the light of all circumstances of the case, with due regard to all the relevant factors’,” said Justice Zondi.
Further to the dismissal, Justice Zondi found that “poor judicial service was rendered in this matter”, after a delay in making a decision, as well as failure to give reasons for the order that was made, after Acting Justice Kose took two years to deliver judgment in the case, and had failed to supply written reasons for her decision.
In his judgment, Justice Zondi also ruled that a copy of the judgment be sent to the Judicial Service Commission to investigate the conduct of Acting Judge Kose.