“I have been farming at home with my parents since I left agricultural college over 10 years ago. While my parents will not discuss handing over the farm, the unwritten understanding is that the farm will be left to me under my parents’ will. I have plans to expand next year with the end of milk quota. However, I am getting increasingly concerned about spending all this money in the hope that I will one day inherit the farm. Have you any advice?”

This is a common occurrence in a family farm situation. You should establish beyond doubt that your parents have drawn up valid and subsisting wills and try to ascertain what is provided in those wills.

Unfortunately, you are not legally entitled to see a copy of their wills at this stage, but given the commitment you have made to the farm over the last number of years, it is a reasonable request that you be shown a copy of their wills.

The danger of your parents not having made valid wills is that, should one of your parents die, the surviving spouse would be entitled to two-thirds of the deceased parent’s assets, while the other one-third of the assets would be divided among all of his/her children, you and your brothers and sisters (if any). If there is no surviving spouse, the entire estate would be left to the children in equal shares in the event of the deceased not having made a valid will.

Who owns the farm?

The other matter which you should try to establish is who owns the farm, i.e. is it owned by your mother or father, or both? If the property is held jointly the land falls outside the will.

Should one of the joint owners die, the land will automatically pass to the surviving joint owner. In that scenario, it will be the surviving joint owner’s will that will dictate who will become the ultimate owner. For example, a father could provide in his will that the farm is to be left to a son. However, the farm is jointly owned, so if he died the farm would automatically transfer to his wife.

Her will might not provide that the farm is to be left to the son, in which case it could fall into the residue, which is normally left equally to all the children.

Consequently, it is important to trace through the different eventualities to ensure that the farm will ultimately go to you if that is what your parents’ intentions are.

Another matter which you should check is whether the will provides that you are to inherit Single Farm Payment entitlements, livestock, plant, machinery, milk quota and co-op shares.

Unless the will specifically provides this, those items will fall into the residue which could be left to all the children equally.

Also, it may be necessary for your parents to revise their wills once the Basic Payment Scheme system is introduced next year as the will may only provide for Single Farm Payment entitlements, which will no longer exist from the end of this year. It may be necessary to provide that the benefit of any Milk Supply Agreement will accrue to you following the end of milk quota regime next year.

Restrictions

The law imposes certain restrictions on how a person may deal with their estate. A spouse is entitled to one-third of the other spouse’s estate if they have children. This is known as the legal right share. A surviving spouse also has a right to require that the family home and household contents be included in his/her share.

Children are not automatically entitled to any part of a parent’s estate but they may apply to court if they feel that a parent has failed in their moral duty to make proper provision for them in accordance with a parent’s means. The onus is on the child to prove to the court that the parent failed in their moral duty to make adequate provision for them.

Promissory estoppel

An alternative course of action you may have in the event that you do not inherit the farm is a claim for promissory estoppel. In order to succeed in such a claim, you would have to be able to prove the following:

  • That you had been given a promise or expectation that the farm would be yours on your parents’ death;
  • It was reasonable for you to act on that promise and you did so over an extended period;
  • You suffered detriment on the faith of that promise both in terms of your labour and expenditure.
  • These promissory estoppel cases turn on oral evidence and, in particular, on your credibility in giving evidence. It will not be possible to predict the outcome with certainty, and there is the question of costs if the claim does not succeed.

    Any such claim must be brought within two years of the date of death and if the claim is successful, the executors will be deemed to hold the farm on trust for you and it will not form part of the estate.

    Obviously, it is in everyone’s interest to ensure that conflict would not arise in relation to either of your parents wills and, accordingly, you should impress on them the importance of ensuring that the wills leave assets as they intend to leave them.