There are legal options if a will is deemed unfair
Dear Karen, My brother was willed all the farm by my parents, despite the fact I have worked the farm full-time for the past 10 years, what can I do?
Unlike a spouse or civil partner, the children have no absolute right to inherit any part of their parent’s estate if the parent makes a valid will. However, if a child considers that he or she has not been adequately provided for, or if the will has failed to deliver on a promise or representation made by the deceased, there are a number of court actions available to them.
This problem frequently arises in the context of a family farm, where it is common for a child to work on the farm unpaid from a young age, in light of a promise that he/she will receive the farm upon his/her parent’s death.
While most people are familiar of the repercussions of breaking a written contract with terms and conditions, what happens when an oral contract or promise is broken?
The action available in this instance is called proprietary estoppel and is concerned with equity and the concepts of ‘fairness’ and ‘unconscionability’. Firstly, it is important to be aware that a promise or representation in itself is insufficient and the other party must be able to demonstrate that they acted to their detriment as a result of such a promise.
The promise must have been clear and caused the individual to reasonably believe that they would receive the land, farm or part of. The word detriment in this case means the person is now worse off because they relied on the promise. Acting to one’s detriment may include spending money on the land or farm, choosing not to pursue other career prospects in favour of working unpaid on the farm, or the payment of bills or mortgages relating to the farm. It must be further proved that these actions were taken as a result of the representation and would not otherwise have been done.
If all these aspects of the test are satisfied, the court has a number of options. The court has the ability to order the transfer of the land or farm, prevent the party from being evicted from the land by the land’s new owner, compensate the party in monetary terms, along with many other remedies with which the court has a lot of discretion.
Another option available to a son or daughter who feels they have been unjustly treated and inadequately provided for in a will, is the option available under Section 117 of the 1965 act, under which if a child may make an application to court to seek a declaration that the parent has “failed in his moral duty to make proper provision for the child in accordance with his means”.
Each case is decided on its own merits and the court examines the situation from the point of view of a “prudent and just” parent. 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. The Law Reform Commission is considering that Section 117 should be amended so its focus would be firmly on a needs based approach. It shall presume that proper provision has been made by a parent for an adult child subject to three exceptions, as follows:
(1) In the case of an adult child whose health needs or capacity has not been properly provided for in the parent’s will.
(2) In the case of an adult child who has given up other opportunities in order to care for the parent in the parent’s last years.
(3) In the case where the adult child shows that the parent left something that is of sentimental value.
This new legislation will provide circumstances whereby the child would need to prove significant need or hardship and that this need or hardship should not be based on a failure of the parent’s moral duty.
To avoid situations like these upon death, it is important for people to speak with their parents, to try and establish if they have drawn up wills and if so, who are they leaving the farm to. While children are not legally entitled to see a copy of their wills at this stage, if they have made a large degree of commitment to the farm over the last number of years, it is a reasonable request to be shown a copy of the will.
It is important to remember that a will can be changed at any given time.
