Inheritance Wars: Secrets to safeguard a farm from family feuds

In England and Wales, the freedom of making a Will under any terms you choose allows assets to be distributed as the Will-maker pleases, unlike in countries such as France, where it is against the law to disinherit your children.  

While making a Will has many benefits, the result of this freedom can sometimes cause family feuds when factors such as favouritism, ill health, mental capacity, and unscrupulous relatives, partners and even professional carers, come into play. The subsequent litigation can leave an estate depleted to varying degrees and lead to instances of contentious probate.

Despite the possibility of contention, and with inheritance disputes across the board doubling from 2016 to 2024, less than a third of farmers have a formal plan for naming their successor, with many unwilling to relinquish their full duties to someone else – even a relative.

When might disputes occur over farm estates? 

Contentious probate (a dispute over the validity of a Will) can arise on various grounds, some more sinister than others. For example, in the case of undue influence there is a suspicion that the Will-maker was persuaded or manipulated into altering the provisions of a previous Will; coercion, on the other hand, involves physical force or threats being made to the Will-maker to encourage them to change their Will.

Another ground on which someone might dispute a Will is if they believe there was a lack of mental capacity to make the Will. Capacity refers to someone’s ability to use and understand information to make a decision, and their ability to communicate that decision.

One example is the recent upturn in inheritance disputes as a result of increasing land values and incidences of dementia. Recently, courts heard a claim from an elderly woman who stated that her daughter controlled her and coerced her into denying other family members a share of her estate. While the Will was overturned in this case, calls are being made for the law to be more rigid, to avoid similar disputes in future.

When it comes to inheritance planning, the test for capacity is whether a Will-maker understands the nature of a Will and its effects, the extent of the property they are disposing of and the consequences of their decision.

One of the difficulties with farming families in particular is that they are often reluctant to face difficult estate planning decisions and do not make a Will as a consequence. This becomes further complicated by the industry custom of making land deals on a handshake, which causes problems due to a lack of documents proving ownership of the land. Additionally, some farmland may be unregistered; once the farmer dies, there are plenty of claims from people (relatives or non-relatives) who assert that they are rightly entitled to the land, for instance, because they kept stock on it through custom. This makes Wills essential to both document the land and ascertain the true beneficiaries of the estate on the farmer’s death.

The common denominator with all of the above is that they would each result in the estate being administered in a manner that does not reflect the Will-maker’s intentions. By ensuring that you have a well-drafted, clear and up-to-date Will, you reduce the likelihood of your wishes not being met even if your Will is contested.

How to contest a Will for a farm estate 

If beneficiaries of a Will for a farm estate are unhappy and feel there are sufficient grounds to contest it, there are ways they may be able obtain farm property or land by way of equitable rights. One such example is proprietary estoppel; a process which allows the creation of proprietary interests in land despite the lack of formalities such as Wills.

In the case of Thorner v Major [2008] EWCA Civ 732, David Thorner did substantial work without pay for nearly 30 years on his relative Peter Thorner’s farm. Peter assured David that he would inherit the farm, even drafting a Will in which he left everything to David, thus prompting David to act in reliance of that promise to his detriment – giving up 30 years of earnings.

After an explosive argument, Peter ripped up his Will, and failed to draft a new one before dying. Although Peter died intestate, the courts argued that his ongoing promises to David were sufficient evidence enough to give David a claim to the land.

Highly contested, the claim went all the way up to the House of Lords before it was ruled that David should inherit the farm estate as promised to him under proprietary estoppel.

While rights such as proprietary estoppel may seem to make documents like Wills obsolete – “Surely anyone could say assets were promised to them, right?” – the law is complex so as to ensure that the right isn’t abused. The claimant must establish a right in the land by proving that it was promised to them and that as a result of that promise they acted on it to their own detriment.

How do you safeguard your future from this kind of contention? 

The law around Wills and inheritance can be a minefield, especially when taking into account the challenges a person can make and the rights they may have under the British system of freedom to make a Will. That is why making a Will and keeping it up to date is crucial for the security of your farm assets as well as your family and loved ones.

To safeguard your assets further, you may consider signing two separate lasting powers of attorney (LPAs); One LPA for financial decisions, to ensure that if you do lose capacity, the attorney will manage your finances appropriately and according to your wishes, the second made in respect of health and care decisions, with the attorney only able to act if the person is found to not have capacity to make a particular decision.

By planning for the event of your ill health as well as your death, you can be sure that decisions about your farm are made according to you wants and needs, affording you the time and space to focus on your wellbeing.

To avoid issues, a solicitor’s advice is always recommended, not just to make sure that there is a well-thought-out inheritance plan and valid Will in place, but also to keep on top of documentation. Making a Will involves a lot of paperwork and recording of conversations to ensure that the intentions of the Will-maker are met, having a solicitor take care of that for you will make things a whole lot smoother. What’s more, notes by a solicitor deeming that a Will-maker had capacity at the time of drafting the Will are compelling evidence to a court if someone subsequently makes a claim against the estate and validity of the Will.

It’s always worth seeking legal advice on how a farming estate should be administered as efficiently as possible. This will ensure that your wishes are carried out after your death, with as little contention as possible.

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