24
East Cork
by KAREN WALSH I’ve always got on well
with my parents and they gave me the farm 10 years ago as I was the only one interested in it. It is a small farm and myself and my partner both work off-farm jobs to keep it afloat. My parents gave me the farm subject to the condition that I give my siblings a site each if they should want it. At the time I agreed to this as I thought we would come to an amicable agreement on where the sites would be. My brother has recently moved home and wants to build on the site. He wants to build on the best field we
Business Dear Karen
have which is 10 acres. My parents are agreeing with him that I should give him the 10 acres and are now saying
that they should
have split the farm evenly between the three children. My parents never legally
transferred the farm to me as I was too old to claim Young Trained Farmer Relief and they said they would
leave it to me in
their will. But now can they change the will and take the land from me?
Dear Reader, Firstly it is important to
note that your parents can change their wills at any time as long as they are of sound mind. This means that
You do not state the acre-
age of the farm but it would appear from what you say that this farm is barely via- ble as it is, and the loss of 10 or 20 acres would be detri- mental to it. My first piece of advice
would be to talk to your parents. Communication is key here. They may be try- ing to provide equally for all their children and may not have considered that if they only leave part of the farm to you that you may not be able to make ends meet and subsequently cease farming. I am sure that
this is not
what they want. I would advise you to
speak to them and make it clear that
they could very well
change their wills to gift a site to each to your siblings or divide the farm equally between you and your sib- lings.
the only reason
the farm is staying afloat is because both you and your partner are working off- farm jobs and contributing to it, and if you lose the best 10 acres you will have to cease farming the land as it will not make economic sense to continue.
Your parents could re-
consider and potentially you could all come to an agreement as to sites, hav- ing regard to everyone’s needs. If your parents do change
their wills and leave the best 10 acres to your siblings, you have options. The first is Promissory
Estoppel. This doctrine could be invoked where you were given a clear promise that you will receive
farm upon the death of your parents. You must then show reliance, that is that you relied on the promise and that
the
off the farm in order to keep the farm afloat. This certainly would constitute acting to your detriment. The evidence must be
corroborated by a third par- ty, for example a neighbour, and if all of these conditions are satisfied, the Court may decide that it is reasonable having due regard to all the circumstances to transfer the farm to one person de- spite what the Will says. However, in your case
it was reasona-
ble to do so, and you must also show that you acted to your detriment in reliance of the promise. Your case sounds almost like a classic case where the doctrine of Promissory Estoppel could be invoked. You were told you would inherit the farm and you started to work on the farm. You and your partner both have to work
your parents have told you that they may transfer parts of the farm to your siblings. A court may consider that this constitutes notice and that you should have ceased to rely on the promise to your own detriment at this point. The
other option that
may be available to you if your parents gift sites to your siblings in their will is an application under sec- tion 117 of the Succession Act 1965. This is made when a child feels that pro-
vision was not made for them in their parent’s will. The court looks at wheth- er the parent made prop- er provision for the child, judging the parent against the “prudent and just” par- ent standard. The onus is on the person making the application to prove that the parent did not make prop- er provision for them. This is difficult to establish and I do not think that you would succeed in such a claim. You may have put mon-
ey into the farm through a bank loan to improve it and have added value
to the
farm and you could seek to have such payments repaid to you. The courts are always re-
luctant to interfere with the will of a deceased person, and it is highly advisable to speak to a Solicitor about the potential remedies open to you in your individual circumstances before con- sidering action. Talk to your parents as soon as possible
so you can establish their position and future plan for the farm so that you can make an informed decision about your future. Karen Walsh, from a
farming background, is a solicitor practicing in Wal- shand Partners, Solicitors, 17, South Mall, Cork (021- 4270200), and author of ‘Farming and the
Law’.
Walshand Partners also spe- cialises in personal injury claims, conveyancing, pro- bate and family law. Email: info@walshand-
partners.ie Web: www.walshand-
partners.ie Disclaimer: While every
care is taken to ensure accuracy
of information
contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howso- ever arising, and you should seek legal advice in relation to your particular circum- stances at the earliest possi- ble time.
info@eastcorkjournal.ie
Thursday, 24th
May 2018
Experience you can trust FINANCIAL PLANNING ADVISORY RETIREMENT PLANNING
www.heritagewealth.ie
27 Cook Street, Cork City Tel: 021 463 8000 • Email:
info@eastcorkjournal.ie • Web:
www.eastcorkjournal.ie eastcorkjournal
021 2390880 @eastcorkjournal / #eastcorkjournal
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96
