Pittwater Life April 2018 Issue


Safety First: Reducing risk on Mona Vale Rd. We Will Remember: ANZAC Day. Tina Harrod: Island Life. 40 Years' Courtship: Careel Bay Tennis Club

ises are examined is in the rural

community. A son may work

with his father on the continued

development of the family property

to the greatly increased

prosperity of the father. The assumption

that the father would

leave the property to the son on

his death follows, otherwise the

son might not commit to working

on and developing the farm

and it may not be as profitable.

Claims may be made by a son

who has been working on the

farm for a number of years that

he has received a promise he

would be rewarded by inheriting

the farm on his father’s death.

Such a promise can be both

difficult to prove and difficult to

deny if the son has worked for

a long period on the farm and

made considerable improvement

to it at his own expense.

The son may regard his inheritance

as rightfully his. However,

his sisters may think otherwise,

as they consider themselves being

involved in the farm in their

youth and they may have looked

after ageing parents. The sisters

may regard the farm as “family

property” that should belong to

all family members.

In many cases a son may,

after leaving school, join his

father and be trained in the

ways of farming. By the time of

the father’s death the son could

have helped build up the assets

of the farm, frequently doing

much of the heavy work for long

hours with no defined sick leave

or holiday leave and for very low

wages while the father held the

purse strings.

In farming cases it is not uncommon

for a claim for family

provision to be combined with

a claim to enforce a mutual will

or a testamentary contract.

This is complex litigation.

In family provision matters,

the court considers the conflict

between rewarding sons who

have worked on farms and providing

maintenance for other

children. In most cases the

conflict has been resolved in

favour of recognition of farming

sons’ contribution over

other children’s needs. There

are few cases, if any, where

a daughter has taken sole

charge of a farm for a period

of years and has bought a

claim. Non-farming sons, widows

and daughters who have

helped in various ways have

received very small amounts

by way of compensation.

A testamentary promise may

not have the status of a binding

contract but it is reasonable for

the person to whom the promise

has been made to act in reliance

on the interpretation, if they

thereby suffer detriment when

the person who has made the

promise departs from the promise.

The promise may support a

claim of estoppel by encouragement,

or proprietary estoppel,

and thus the promise may be

upheld and the estate estopped

from denying the claim.

There are recent cases where

the Courts have considered

these complex but important issues,

which require careful legal

advice should you wish to make

a claim.

Comment supplied by

Jennifer Harris, of Jennifer

Harris & Associates, Solicitors,

4/57 Avalon Parade,

Avalon Beach.

T: 9973 2011. F: 9918 3290.

E: jennifer@jenniferharris.com.au

W: www.jenniferharris.com.au

Business Life

The Local Voice Since 1991

APRIL 2018 57

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