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27 Oct 2015

Family farms are subject to a distinct rural ideology in which farming is considered a male vocation.  The cultural values of farming dictate that a son will inherit the family farm.  In general, the Courts do not interfere with this sentiment – whether the matter at hand is a family law property matter, or a claim for further provision from a deceased estate.  This article specifically deals with the Court’s approach to claims for further provision from a farming estate.

In family provision claims, the Court faces a conflict between: 

a) the moral duty to reward sons who have contributed to the family farm; and 
b) providing for other children, as is required by family provision law.

Moral Claim

A son’s “moral claim” or expectation of inheriting the family farm is elevated where he has been working on the farm for his whole life for little or no wages.  It is common for a father to indicate to that son that he will one day inherit the farm.  This promise serves as incentive for the son to commit to working on the farm, and is called a testamentary promise.  On the basis of a testamentary promise, a son may invest a lifetime of labour on the farm which he expects will be reciprocated by a later transfer of title. 

Family Provision Law

Family provision legislation creates an obligation on testators (Will-makers) to make proper provision for the maintenance and support of their dependants.  This places a limit on testamentary freedom, which is a testator’s freedom to leave their property in accordance with their wishes, no matter how unfair or unreasonable.  

Family provision legislation is neutral to the rural tradition of maintaining property in the hands of a son.   The sole concern of the legislation is to make sure that all dependants are adequately provided for – notwithstanding a son’s expectation of receiving the entire farm. 

Under family provision legislation, the testamentary promises of a deceased are not expressly relevant.  In any event, verbal promises are difficult to prove with any degree of certainty.  Even if a testamentary promise can be proven on the balance of probabilities (that is, it is more likely than not that a promise was made) it may be that subsequent actions or words revoked that promise.  For a want of certainty, the Court will recognise the shadow, rather than substance, of a testamentary promise.  The Court will place greater emphasis on the “moral duty” owed to a farming son than a testamentary promise.  

Court’s Approach

There is no legal principle that sons have a right to inherit the farm.  The Court will consider whether the testator, who received value because he made certain promises, owes a moral duty to fulfil that promise.  

It is inappropriate for the court to approach family farms with a view to equality.  The farm cannot be divided or sold without destroying it as a viable entity and source of income.   For this reason, the Court usually upholds the rural norm in favour of one son. 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now


*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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