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:
b) providing for other children, as is required by family provision law.
Family Provision Law
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.
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.