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Post-death intentions: If it’s not written down, it might not happen

More than 30 million people in Britain do not have a will, which can lead to costly disputes and serious damage to family relationships.

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Post-death intentions: if it’s not written down, it might not happen

Melanie Pickering of Roche Legal urged farmers that when dealing with post-death intentions, ‘if it is not written down, it might not happen’.

 

She said: “This is one of the best reasons for making a will. It shows the people dealing with your property and assets what you want to happen.

 

“Not only does this mean your intentions take effect, it helps avoid family or friends arguing over what your intentions might have been.”

 

Broken promises

Brexit uncertainty is accelerating the growth in the transfer of property between family members during people’s lifetimes, rather than the norm of making provisions in a will.

 

Whilst farmland is an asset crucial to supporting the futures of many generations of farmers, often where families are concerned, formalising agreements surrounding inheritance is not prioritised.

 

This was according to Shakespeare Martineau wills and probate specialist Debra Burton, who said farming families should be clearly communicating with one another about their wishes and understanding of the future ‘at the earliest possible stage’.


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She said: “Relying solely on verbal agreements between family members concerning inheritance, and what is to happen to farming estates, can be a recipe for disaster.”

 

She added if promises have been made which family members are relying on, such agreements should be regulated.

 

“This could include partnership agreements, deeds of trusts, or business tenancy agreements,” Ms Burton said.

 

“Any arrangements should then be kept under review to ensure that they are still fit for purpose and all parties can be notified upon any changes that are made.”

 

These arrangements – similar to a conventional pre-nuptial agreement – can be drawn prior to farming families entering into a farming relationship.

 

It can also include provisions for division of property and set out rights for the future in the event of a breakdown of that relationship.

 

Ms Burton said: “Conversations surrounding the extremely sensitive subject of inheritance often only raise their head when it is too late, and a dispute has already formed.”

 

Options

Affected parties have three options if they feel a family member has not adequately formalised an inheritance agreement:

 

  1. to challenge a will if they legitimately suspect it to have been made as a result of undue influence, or if the creator of the will is not believed to have had the capacity to do so at the time of making it;
  2. to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 if they feel they have not been adequately provided for from the deceased’s estate;
  3. to raise a proprietary estoppel claim if they feel they have not received the assets they were promised.

Ms Burton said: “Such claims are often made in a farming context as it can be very common for children to work on their parents’ farm, often for low wages, for many years on the implied understanding that one day they will inherit everything.”

 

Research from Direct Line life insurance showed that more than 12.6 million people – about 24 per cent – would seek to dispute the wishes of a loved one by going to court to challenge the bequests in their will.

 

And according to solicitor Stephen Lawson of FDR Law, challenges to provision in an estate, whether by a will or when people die ‘intestate’ without leaving a will, are growing.

 

He said challenges to an estate were often a result of undue influence; a lack of proper knowledge and understanding of a will; and a lack of what is known as ‘testamentary capacity’, a person’s legal and mental ability to make or alter a valid will.

 

Mr Lawson said: “Anyone is free to challenge a will at any time. Anyone can be free to promise to leave a farm to one member of a family only, subsequently, to leave it to another – but this principle is subject to an important exception.”

 

Promises

He said an example of estoppel could be where someone promises to leave the farm to a particular person but that person then relies on those promises and acts to their detriment.

 

The person who made the promise can then be held to it – even if that person subsequently makes a will to the contrary.

 

Mr Lawson said: “Sadly there have been numerous cases recently which have gone all the way to trial in precisely these circumstances – where a family owning farmer has made a promise to leave the farm to a particular beneficiary – only to change their mind later,” he added.

 

“These promises can have serious consequences for the devolution of the farm – in short, promises should never be made unless they can be kept.”

 

Of those cases that are picked up by a lawyer however and take on a process of mediation, about 85 per cent settle.

 

“[It has] considerable benefit for family members so that they can meet again around a kitchen table, rather than at a court trial,” Mr Lawson said.

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