Can my parents really leave me out of their will?
Dear Karen,
I am farming our family farm almost solely these days. My father is too old to work full time. I think the land is in my parents’ joint names. Is there any way I can ensure that the farm is given to me when they die or beforehand?
Dear reader,
The simple answer here is no. You cannot force anyone to give an asset to you either by will or by gift. It is your parent’s asset and they can do with it as they wish. This puts you in the difficult position of having invested time and probably money into the farm with no guarantee of receiving the farm now or possibly ever. This situation often arises out of a lack of communication within a family. Quite often the sole reason why parents refuse to transfer the farm to a son or daughter is simply for the fear of losing it, for example, that you may sell it on a future stage. Good communication between the transferor and transferee should eliminate this.
What should I do if I’m put in this position?
Firstly, you should start communicating with your parents and introduce the idea or the possibility of transferring the farm within their lifetime. This will show them your interest in taking over the farm. There are different issues and certain information which should be ascertained such as if the land is held in the joint names of your parents or if it is in the sole name of one, let’s say your father owns the entire farm. Secondly you should try and find out from your parents as to whether they have made wills.
If the land is held in the sole name of your father or mother, then it will either devolve accordingly to their will, if they have one or if they have not made a will then two-thirds will go to the other parent and the remaining one-third will be shared between your siblings.
If the land is in joint names of your parents, then it will automatically pass to the survivor of them and their will then dictates who the ultimate owner of the land will be.
If there are no wills then the distribution of assets will be in accordance with the rules of intestacy. Your parents like everyone else should be encouraged to make a will in order for them to be able to decide what happens to their assets upon death.
As long as it is their wish having a will should prevent the situation arising where the farm will have to be split up.
Try to explain and talk to them that if it is their wish that you have the farm that you would be very vulnerable if they passed away without having a will in place.
In the situation where there is a will made and you have not been given anything under the will or if the farm has been left to someone else, there is the possibility of making a claim called Promissory Estoppel.
This is where you make a claim against the Estate if you can prove firstly that you were given a clear promise that you would be given the farm upon the death of your parents. Secondly, that you relied upon that promise and it was reasonable for you to so rely on that promise and, finally, that you acted to your detriment in reliance on that promise.
These claims are difficult to overcome as it may be almost impossible to prove that you were given a clear promise that you would receive the farm either before death or on death. If a will has been executed giving the farm to someone else then it will be difficult to establish enough proof to overturn the wishes of an individual.
A judge will have to decide on the basis of all the evidence presented that there is sufficient circumstances to transfer the farm to another person other than to whom is mentioned in the will on the basis of Promissory Estoppel.
Your claim and evidence will have to be backed up by some third party who can vouch for your evidence and the circumstances you are claiming. This will need to back up your own evidence and the success of your claim will depend on this.
You should open the lines of communication between you and your parents as this situation should be avoided at all costs due to the risk, stress and financial cost involved in going to court for a claim of this nature.
