Grandparents’ duty to maintain a grandchild and the obligation by their deceased estate to pay maintenance
In the judgment of Phillipa Susan van Zyl N.O. v Keith Getz N.O. (6 July 2020) the Supreme Court of Appeal recently reaffirmed the common law position regarding a grandparent’s maintenance obligation towards their grandchildren. In terms of the common law, a grandparent may be legally obliged to support a grandchild if both parents are unable to support the child and the grandparent is able to do so. (It is, however, uncertain whether a grandparent will have such a duty where the parents, or one of them, is able but unwilling to support the grandchild, or cannot be found.)
The Court was also seized with the question whether the common law should be developed to allow for a grandparent’s deceased estate to bear the onus of support towards grandchildren. It was argued that the common law had to be developed to allow such a claim against a grandparent’s deceased estate based on, amongst other things, the dignity of the grandchild.
The Court found, based on the facts of the matter, that such development was not appropriate and that it may have far-reaching effects on the current law of succession. As such, the common law in this regard remains untouched, for the time being.