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"Not being fully included in a will can be a matter of losing your life's Work"
Q. I am a farmer's son and am now in my fifties. Having farmed our 150 acre farm for over 20 years alongside my brother (since my father retired) I was expecting that I would inherit at least half of the farm when the time came for my father to pass it on in his will.
Although it was never discussed openly by the family, I have always presumed that one day, at least part of the farm would be mine. I have never been paid for the work that I have done on the farm and the profits have kept my parents in their old age. I was shocked to learn that my father has left the entire farm to my brother and I will inherit a site. Is there anything that I can do?
A. These circumstances are always difficult by virtue of the inevitable damage that they cause to family relationships. It is essential that when it comes to succession planning, much thought is given to the consequences of the distribution of assets for all of the affected parties before the will is made. Most people are aware that once they enter a contract or agreement, the terms and conditions of that contract will generally be enforceable. For a contract to be enforceable it normally requires that there be a promise, for example to do or sell something, in return for some form of consideration or payment by the other party.
There are, however, limited circumstances in which a contract or agreement, which is not written, can be enforceable even when there is no consideration or payment involved. It is a remedy used by the courts to prevent a person from going back on their word in circumstances where another person has acted or relied on that word to their detriment. It is not enough that a person has made a promise or representation, the other party must actually have acted to their detriment in some way as a result of the promise. For example, if a father promises his son that he will leave him the family farm in his will and as a result the same son works without pay on the farm and improves the farm then, if his father does not in fact leave him the farm, he could bring an action before the court seeking to enforce his father's promise.
In asking the court to recognise that you have an interest in a piece of property in these circumstances, you will need to pass three tests:
1. That a clear promise or representation was made to you in respect of the property. This could be a promise, for example, by a land owner to a nephew that "those three fields will be yours when I'm gone". This clear promise must have led to an expectation or belief on your part that you would receive the land. If you can present evidence, for example a witness, to the promise, you would be in a stronger position to make the claim.
2. You must have acted to your detriment on the basis of this promise. This could involve the spending of money on the property or the passing up of a career off farm or the working on a farm for free for years or the payment of bills or mortgage on behalf of your uncle or the suffering of some other detriment as a result of the promise.
It used to be the case that you would need to have shown the expenditure of money on the lands but as case law has evolved, this is no longer an absolute requirement.
3. You must show that the detrimental acts performed by you were performed in reliance on the belief or expectation. This means that the actions which were taken to your detriment were done because of the promise made, and otherwise would not have been done.
The relief which would be sought from the court is called proprietary estoppel and is an equitable relief/remedy. Equitable remedies are concerned with "equity" or fairness. Therefore, they are based upon righting a wrong where the conduct complained of is deemed by the court to be "unconscionable".
The court has wide discretion as to how it will give effect to the "equity" which has arisen. This can range from ordering a transfer of the land to the person who claims the equitable interest to a simple negative right preventing the person from being ejected from the land by the registered legal owner. It is essential to bear in mind that these type of cases are considered on a case-to-case basis by the courts and the outcome is often difficult to predict. There is considerable risk with high legal costs; however, for some it is a matter of losing their life's work.
The importance of estate planning cannot be overlooked in the context of preventing family disputes and possibly this type of claim after the lifetime of the land owner.
This article is intended as a general guide and you should seek legal advice in relation to individual circumstances.
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