Pittwater Life April 2018 Issue

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