When grandparents inherit from their grandchildren

by | Jul 21, 2021 | Advisory Services

It’s normal for children to inherit from their parents. But we don’t often see it happening the other way around. Even more rare is the concept of a grandparent inheriting from their grandchild. But that’s exactly what happened in a recent case in South Africa…

By Chanel Schoeman and Bianca Maritz

2020 was an eventful year in South Africa. There were a number of firsts and a lot of new adjustments. Whilst we were distracted by COVID-19, cigarette bans and differences of opinions on lockdown restrictions, an unsung hero almost slipped through undetected. That unsung hero was a grandmother who took it upon herself to do everything she could for her grandchild, just as she had done as a mother of her own children.

What is a parent?

A recent case involving a minor (who we shall only refer to as “M” for their protection), required the court to answer a fascinating question: What constitutes a ‘parent’? Is it biology or formal adoption? Or is there more to it? On 16 November 2020, the Pretoria High Court declared that being a parent entails so much more than just its literal meaning.

M was born with severe cerebral palsy that occurred during birth. M (represented by a curator ad litem) successfully won a court case that awarded him damages as a result of the negligence of the staff of the MEC for Health. Damages to the tune of R21 million were awarded to M and placed in Trust for his benefit. Sadly, M passed away at the tender age of five. At this stage, M left R15 million remaining in the Trust. The question was, who would inherit this huge estate?

South Africa’s law of intestate succession applied since there was no Will. In fact, there could be no Will as you have to be at least 16 to make a Will in South Africa. The law of intestate succession guides us to award the estate to M’s parents. However, M unfortunately had a difficulty surrounding his parents that many still face today. M’s father was so absent from his life that he didn’t even attempt to stop the courts from removing his parental rights and responsibilities when an application was made to this effect. To add to this sad circumstance, M’s mother suffered severe depression and would often disappear for days, leaving M completely unattended.

Grandma to the rescue

During this time, M’s grandmother would care for him, but often wouldn’t know until the last minute if her daughter had left M unattended. Eventually, M’s grandmother left her job as a hairdresser to care for M who needed 24/7 attention due to his disabilities.

M’s grandmother petitioned the courts for legal guardianship of M. But M’s mother still expressed a desire to care for her child and to turn over a new leaf. As it happened, M died a mere two days after the courts granted joint guardianship to M’s grandmother and mother. M’s father had been completely stripped of his rights by this time. The extremely short timeframe means that we will never know if M’s mother would really have turned over a new leaf.

The executor of M’s estate was worried that following the law of intestate succession might not be moral and just. So, he petitioned the courts for clarity on who should inherit the estate and who had been a real parent to M.

By this stage, M’s father had conveniently resurfaced, insisting that he and M’s mother should inherit equally. The court was quick to shut him down, stating that: “It simply cannot be said that the recognition of [M’s father] who failed to act in the best interests of M accords the bests interests of M. It is simply irreconcilable.”

And then there were two

After extensive analysis of our intestate succession laws, past cases and even international law and cases, the court finally made a decision on whether M’s mother and/or grandmother should inherit.

Largely based on the fact that M’s mother had not been stripped of her parental rights and responsibilities, coupled with the fact that she had cared for M for the first two years of his life and further insisted that she wanted to turn over a new leaf for M, our courts recognised M’s mother as a parent and thus eligible to inherit from M’s estate.

Saving the best for last, the court dealt with M’s grandmother, making it clear that she “was the primary and substantial caregiver and the dominant parental figure in the life of M, from his birth until his passing”. The court went on to say that “it seems logical and sequential that if a parent is excluded from being regarded as a parent… then conversely, a person who is granted parental rights and responsibilities should be regarded as a parent”. The court concluded that M’s grandmother was therefore also M’s parent. It ruled that both M’s mother and M’s grandmother should inherit M’s estate in equal shares.

Lessons for the future

Although this case brings hope for current and future grandparents who may find themselves in the same situation, it would be dangerous to assume that merely stepping into the shoes of the biological parents (without formally being granted parental rights and responsibilities) will entitle you to be regarded as a parent. Although the court, in M’s case, recognized that love, care and nurturing were all important aspects of what makes a parent a parent, they do not automatically mean that you are one. It is equally important to note that while biology is the starting point for most parental relationships, you have to act like a parent (or at least attempt to do so) for the courts to view you as such.

Nevertheless, this is a win for parents of all kinds and hope for their heroics of caring for those children whose biological parents aren’t able to. Most of all, this is a win for children of South Africa. Every child is deserving of a true, loving and caring parent.

By ‘Chanel.Schoeman and Bianca Maritz