Legal: promise of property under a will

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 build a shed next year, 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?

Contents of the will

This can be a common occurrence in a family farm situation. Firstly, you should establish beyond doubt that your parents have actually 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 amongst all of their children ie you and your siblings (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 you should try to establish is who owns the farm – ie is it owned by your mother or father or both?

If the property is held jointly, which is the most common form of ownership of property between spouses, the land falls outside the will. For example, a father could provide in his will that the farm is to be left to a son.

However, if the farm is jointly owned, in the event of his death the farm would automatically transfer over to his wife. Her will might not provide that the farm be left to the son, or worse still, she might not have a will, in which case it would be left equally between 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.

Entitlements, stock, machinery

Another matter you should look into is whether the will provides that you are to inherit Basic Payment Scheme entitlements, livestock, plant, machinery, proceeds of the farm bank account and co-op shares (if any).

Unless the will specifically provide this, those items will fall into the residue, which could be left to all the children equally and this may not be what your parents intended.

Restrictions where a will is made

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, 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 their share (and the share of children under the age of 18).

You should establish beyond doubt that your parents have actually drawn up valid and subsisting wills and try to ascertain what is provided in those wills

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 and the following factors are relevant in making that determination:

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:

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 intended to leave them.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie.

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