A grandchild’s claim to maintenance from a deceased grandparent’s estate

• Jurisdiction: South Africa
• Author: Daniel Mackintosh
• Citation: 2014 Acta Juridica 41
• Date: 15 August 2019
• Pages: 41-77
• Published date: 15 August 2019

A grandchild’s claim to maintenance from a

deceased grandparent’s estate

DANIEL MACKINTOSH* AND MOHAMED PALEKER

†

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 deceased grandparents’ estates is unsettled: the courts have

not overwhelmingly rejected such claims, nor have they strongly endorsed

them. It would appear that the law is in a state of f‌lux. This paper explores the

evolution of maintenance claims against deceased estates so as to better

understand the ambivalence towards maintenance claims of grandchildren

against deceased grandparents’ estates. The paper contextualises the need for

the recognition of such claims within the prevailing socio-economic climate

in South Africa and contemporary constitutional rights and remedies. At the

end, the paper discusses international trends, which recognise such claims to

counter-balance freedom of testation.

I INTRODUCTION

In this article we will consider whether South African law should be

developed to recognise a grandchild’s right to claim maintenance against a

deceased grandparent’s estate. It is our contention that the common law

should be developed in this regard. Even though we hold this view, we

wish to make clear at the very outset that we do 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 therefore only be enforceable where the grandchild’s own parents,

for good reason, cannot provide such maintenance.

To address this issue, it is f‌irstly necessary to contextualise the debate.

Secondly, we will discuss the common law’s attitude to maintenance

claims against deceased estates in general and, in particular, the attitude of

our courts towards recognising the claim of a grandchild. Thirdly, we will

explore the constitutional implications of not recognising the grandchild’s

claim for maintenance. Fourthly, we will brief‌ly discuss how this issue has

been dealt with in foreign jurisdictions so that we may offer suggestions

for law reform.

* PPE BSoc Sci; PPE Hons; LLB (UCT).

†

BA LLB LLM (UCT);Associate Professor, Department of Private Law, UCT;Attorney of

the High Court of SouthAfrica.

41

2014 Acta Juridica 41

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IITHE ISSUE IN CONTEXT

Unlike Roman-Dutch law, modern SouthAfrican law does not subscribe

to a system of forced heirship or legitimate portions.

1

Apart from the

common-law claim for maintenance, which a descendant child has

against his or her parent’s estate,

2

and the claim of a spouse under the

Maintenance of Surviving Spouses Act,

3

there is virtually untrammelled

freedom of testation.

4

A testator generally has the power to devolve his or

her property as desired.

5

Relatives may thus disinherit each other for no

rhyme or reason and may conceivably leave each other a proverbial

bauble on death. Poor estate planning or lack of foresight can also result in

needy family members being left in a scarcely better off position than they

were in before the inheritance.

At present, a grandchild cannot claim a right to an inheritance unless he

or she has been specif‌ically benef‌itted in a will, or is a ‘representative’ heir

in terms of the WillsAct.

6

In this regard the WillsAct provides:

If a descendant of the testator, whether as a member of a class or otherwise,

would have been entitled to a benef‌it in terms of the provisions of a will if he

had been alive at the time of death of the testator, or had not been disqualif‌ied

from inheriting, or had not after the testator’s death renounced his right to

receive such a benef‌it, the descendants of that descendant shall, subject to the

provisions of subsection (1), per stirpes be entitled to the benef‌it, unless the

context of the will otherwise indicates.

7

It is clear from the above that for the grandchild to be a representative

heir the grandchild’s parent must have been nominated as an heir in the

deceased’s will and the will must not expressly or impliedly exclude

representation. Only if these two requirements are met will the grand-

child step into the shoes of his or her parent and take the inheritance by

1

Roman-Dutch law made provision for legitimate portions. The system of legitimate

portions formed part of South African law shortly after the Dutch colonisation of the Cape of

Good Hope in 1652. However, under the inf‌luence of English law the system of legitimate

portions was jettisoned, so much so that by the turn of the twentieth century the system of

legitimate portions was replaced by virtually unlimited freedom of testation: see F du Toit

‘Succession law in South Africa – a historical perspective’ in KGC Reid, MJ de Waal & R

Zimmermann (eds) Exploring the Law of Succession – Studies National, Historical and Comparative

(2007) 71.

2

See discussion in Part III below.

3

Act 27 of 1990. This Act was passed as the legislative response to theAppellate Division’s

decision in Glazer v Glazer,NO 1963 (4) SA 694 (A). The Glazer case is discussed in Part III(2)

below. TheAct has been subject to constitutional scrutiny in: Robinson and Another v Volks NO

and Others 2004 (6) SA288 (C); Daniels v Campbell NO and Others 2004 (5) SA 331 (CC).

4

MM Corbett, G Hofmeyr & E Kahn The Law of Succession in South Africa 2 ed (2001) 40

express the opinion: ‘South African law appears to take the principle of freedom of testation

further than any other Westernlegal system.’

5

Du Toit(n 1) 69.

6

WillsAct 7 of 1953.

7

WillsAct (n 6) s2C(2).

42 SOUTH AFRICAN LAW OF SUCCESSION AND TRUSTS

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representation. It is thus quite conceivable for a grandchild who may have

been a de facto dependant of a grandparent to be disinherited or left with an

inheritance that is so small that it does not cater for his or her maintenance

needs. If the grandchild is an orphan or has been abandoned, or his or her

parents have limited f‌inancial means to offer adequate support, the

grandchild can be left in dire straits.

A recent Social Prof‌ile of South Africa 2002–2011 Report estimates that

about 8.1 per cent of children live in skip-generation households with

their grandparents.

8

This suggests that grandparents in South Africa play a

signif‌icant role in rearing children and their value to the welfare of

children cannot be underestimated.

9

It is thus a matter of extreme

concern when they die and the grandchildren they are rearing are left

without adequate means to sustain themselves.

As regards minor grandchildren who do not live with their grandpar-

ents, but whose own parents are not of suff‌icient means to adequately

maintain them, it seems strange that the welfare of such children should

depend on a meagre state child welfare grant,

10

especially when a

deceased grandparent’s estate may be in a position to adequately meet the

maintenance needs of the grandchildren. This situation has encouraged,

in many legal systems, the passing of laws which make express provision

for family maintenance from the estates of deceased relatives, including

grandparents.

11

With the prevalence of educational disparities, illiteracy and poverty in

South Africa, and the concomitant lack of access to legal resources, it is

more conceivable than not that a grandparent could die intestate. The

Intestate Succession Act

12

read with the Reform of Customary Law of

Succession and Regulation of Related Matters Act

13

adopts a rigid regime

for the devolution of an estate on intestacy.As is the case with testamen-

tary succession, a grandchild does not have an automatic right to claim an

intestate share. He or she will only inherit by representation if his or her

own parent has predeceased the deceased.

14

If the parent is alive, the

8

E Mabuza ‘Grandparents also entitled to foster care grant’ Business Day 18 April 2013

available at http://www.bdlive.co.za/national/2013/04/18/grandparents-also-entitled-to-foster-

care-grant (accessed on 15 May 2013).

9

See the statistical data in Part IV below.See in particular n 143.

10

At present the child welfare grant is R290 per month: Mabuza (n 8).

11

See discussion in Part V below. See also B Beinart ‘The forgotten widow’1965–66 Acta

Juridica 285 at 312ff.

12

Act 81 of 1987.

13

Act 11 of 2009.

14

Intestate Succession Act (n 12) s 1(4)(a).According to s2(1) of the Reform of Customary

Law of Succession and Regulation of Related Matters Act (n 13), where a person dies without

leaving a valid will, his or her estate ‘must devolve in accordance with the law of intestate

succession as regulated by the Intestate Succession Act’subject to certain qualif‌ications. These

qualif‌ications are contained in s 2(2) of the Act. The qualif‌ications do not affect the substance of

the argument of this paper.

43A GRANDCHILD’S CLAIM TO MAINTENANCE

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