10 February 2021
“I have a friend who has been looking after her grandson since birth when her daughter just walked out on the child after he was born with deformities. My friend managed to obtain a settlement with the hospital for negligence during the birth and now takes care of the child using the money from the settlement. The child is very sick and may not have much time left with the biological mother suddenly making an appearance to try and claim the remainder of the settlement money. Surely my friend is entitled to the money having taken care of the child all her life? What is the position in law?”
In our law when a minor child dies intestate, the parent(s) of the child will inherit the estate of the child in accordance with the provisions of our Intestate Succession Act. This would imply that the grandmother of a child (like your friend) will not be eligible to inherit as the entire estate would go to the parent(s) of the child (i.e., your friend’s daughter).
However, this position was recently reviewed in a High Court case where a similar set of facts found itself before the court. In this case a child suffering from cerebral palsy caused through medical negligence was awarded R21 million in damages. The father for all intents and purposes absconded from the life of the child shortly after his birth and was not involved in raising the child or paying for the maintenance of the child. The child was essentially raised by his mother and grandmother.
Upon the death of the child, it fell to the court to determine whether the father was allowed to inherit from the child’s intestate estate or whether the mother and grandmother were both entitled to inherit also.
The court held that the definition of the word ‘parent’ in the Intestate Succession Act does not require the parent to be the blood or biological parent of a child when it comes to inheriting intestate. Accordingly, as the father had absconded, he was effectively released from his parental responsibilities which fell to the mother and grandmother, essentially establishing them as the parents of the child and entitling them to inherit intestate in equal shares from the child’s estate.
Your friend may therefore be able to show that she was the actual parent of the boy and that her daughter had rescinded her role as parent by not being present, potentially entitling your friend to inherit the full estate or at least inherit in equal parts with her daughter from the estate should the child pass.
But it should be noted that this is not an automatic result and the burden of proof would lie with your friend to show that she had fulfilled the role of parent and primary caregiver of the child and therefore be entitled to inherit. We would recommend that your friend obtain the advice of her attorney or family law specialist as to the merits of her entitlement to inherit intestate in the event of the death of the child.