It is generally known that both parents bear the duty to support their dependant children according to their financial means and the needs of the child. This common law duty has been encapsulated in Section 15 of the Maintenance Act 99 of 1998 which reads as follows;
“Chapter 4
Maintenance and other Orders
Duty of parents to support children
15(1) Without derogating from the law relating to the liability of persons to support children who are unable to support themselves, a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child as the duty in question exists at the time of the issue of the maintenance order and is expected to continue.
(2) The duty extends to such support as a child requires for his or her proper living and upbringing, and includes the portion of food, clothing, accommodation, medical care and education.
(3)(a) Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –
- That the duty of supporting a child is an obligation which the parents have incurred jointly;
- That the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
- That the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.
(b) Any amount so determined shall be such amount as the maintenance may consider fair in all circumstances of the case.
(4) As from the commencement of this Act no provision of any law to the effect that any obligation incurred by a parent in respect of a child of a first marriage shall have priority over any obligation incurred by that parent in respect of any other child shall be of any force and effect.”
There is also the lesser known common law duty of support between grandparents and their grandchildren. In the case of Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E) at 510, the court acknowledged that there is an ‘order of priority’ regarding maintenance of a dependant child. The court affirmed that if both parents are not able to support the child, the duty to support such a child falls on the paternal and maternal grandparents. Therefore, a claim for maintenance by a dependant child must initially be sought against both of parents.
Should either or both parent/s pass away, the obligation to support their dependant child persists. Our law provides for the right of a dependant child to claim maintenance from the estate of a deceased parent, see Ex Parte Insel and Another 1952 (1) SA 71 (T). To lodge such a claim, the dependant child must show that they are dependent on his/her deceased parent/s and, further, that the deceased parent’s estate has the ability to provide such maintenance.
Only where the deceased parents’ estate together with the means of the surviving parent are insufficient to cover the maintenance needs of the dependant child, is the dependant child then permitted to claim maintenance from his/her surviving paternal and maternal grandparents, jointly (see Petersen v Maintenance Officer, Simon’s Town Maintenance Court 2004 2 SA 56 (C)). This duty of support is not however extended to the estates of deceased grandparents.
Initially, in the case of Lloyd v Menzies, NO and Others 1956 (2) SA 97 (N) (“Lloyd”), the court held that “it would be illogical not to maintain the liability upon the estate of anyone who, if living, is under the duty to provide support”. The court accordingly rejected the notion that recognising a claim for maintenance against a deceased grandparents’ estate would “interfere unduly with freedom of testation”.
Conversely, in the subsequent case of Barnard NO v Miller 1963 (4) SA 426 (c) (“Barnard”), the court rejected the reasons set out in Lloyd, stating that the claim could not be recognised based on “presumed illogicality”. According to Barnard, the question is not whether recognising the claim is illogical, but whether it is permitted by our law, since acknowledging such a claim would encroach upon the legislature’s functions.
Following the above-mentioned cases, in the recent SCA case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) (“Van Zyl”), a minor child lodged a claim against her deceased grandfather’s estate for maintenance. The executors of the estate rejected the claim on the basis of the findings as set out in Barnard.
The SCA found that to develop the law to allow a dependant grandchild to claim against a grandparent’s estate was not supported by the facts of the Van Zyl matter, and therefore it could not make a ruling on this point. The SCA further held that such a development would require a comprehensive change of a common law rule, which could only be taken after hearing all the relevant evidence. Such a change in the common law would have a significant effect on the law of succession and, essentially, the notion of freedom of testation. Paragraph 54 of Van Zyl reads as follows –
“The development of the common-law rule sought by the appellant implicates the foundational values of human dignity, equality and freedom of the testator to decide how he or she wishes to have his or her property distributed upon his or her demise…. If such claim is recognised, it has the potential to compete with the heirs of a deceased grandparent. It could also compete with other claims for maintenance that may arise, including by a surviving spouse or child.”
The court in Van Zyl emphasised that one needs to first establish the financial means of both the dependant child’s parents prior to considering a claim against a grandparent, and by extension, against a deceased grandparent’s estate, and this was not fully shown in this matter. Therefore, the court did not fully consider the legal issue and commented that such a legal question is for the legislature to address.
It is important to note that both Lloyd and Barnard are pre-constitutional judgments. Consequently, the issue of whether a dependant child has a maintenance claim against a deceased grandparents’ estate might be challenged in light of current public policy and the new constitutional dispensation. To successfully pursue such a challenge, the party making such a claim would need to fully disclose the financial means of both surviving parents and/or their deceased estate, and further consider the maintenance obligations on all surviving grandparents before alleging any claim against a deceased grandparents’ estate.
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Written by: Megan Manley | Associate Litigation | Claremont Phone: +27 21 683 3553 |