Everyone is familiar with the expression ‘You can’t choose your family’.
Whilst there is always a tendency to look through rose coloured glasses at ‘the good old days’, it does seem that there is an increase in the number of issues arising between family members, particularly when it comes to contesting a will.
There are likely a number of factors at play with this, including a greater level of wealth (especially with increasing property prices) and different family structures with an increasing number of blended families.
The typical scenario where someone contests a will is where they feel as though they have not received as much as another person in the will or where they feel like they are entitled to a greater amount under the will.
In a farming context it arises most often where a son or daughter comes back to work on the family farm on understanding or promise that he will inherit the farm. This arrangement goes on for many years in circumstances where the son/daughter continues to work on the property for little to no wage on the basis that one day the farm will be his or hers.
Whilst the issues usually arise after one or both of the parents pass away, it is not uncommon for the situation to blow up when the son/daughter gets fed up with how the farm is being run or what he or she is being paid, or it becomes evident that the parents are not going to pass on the property as promised.
In these circumstances, the son/daughter is able to make a claim based on the promises made by the parents. In these types of matters a court will consider a range of issues, including:
- evidence of the promises made to the son/daughter;
- reliance by the son/daughter on the promise;
- detriment suffered e.g. foregone career opportunities the son/daughter might have had if he/she hadn’t stayed on the farm; and
- whether, in the circumstances, it was unconscionable for the parents to resile from the promises made.
In addition to awarding a sum of money, a court may also make an order that the parents are holding the farming property on trust for the son/daughter as a consequence of the promise.
The prospect of any type of litigation should be avoided if at all possible, given the uncertainty, expense and emotional strain of that process, but it is available as a last resort. It may be a necessary part of a negotiation. However what these situations highlight most of all is the vital importance of having in place a properly considered will and succession plan.
This article was published in The Stock Journal on 13 May 2021.