I worked on the farm for years on the basis it will be left to me after my parents time. How do I make sure that is transferred to me?
It seems very strange in modern Ireland that a person clearly working on a farm on the understanding that they would be the eventual owners of it must have some legal entitlement to the ownership.
There is a legal term call Promissory Estoppel which covers the situation.
In plain English it means if you were given to understand even though it was not in writing and you acted or worked the property on the basis of that understanding the Courts will protect your interest if that property for some reason was transferred to other parties.
For example a young man might work for a number of years on perhaps another relative’s farm and then in order to see more of the world might go to Australia or New Zealand and worked there for a number of years. While the intention is to get a wider farming experience from these travels it is important that this is clearly understood by all parties and that the young man or woman intends to come back to a particular farm in due course.The Courts will in those circumstances will clarify the times and efforts put into the farm to justify the claim under Promissory Estoppel heading.
There was a case in 2012 where a son claimed he had worked the lands for 30 years and expectation that he would get the lands which were then left to his sister. The Court awarded in the lands on foot of his Promissory Estoppel claim. He did not claim under section 117.
The application under section 117 of the Succession Act is only available for a child of the deceased so an nephew of a bachelor uncle can only claim under the Promissory Estoppel idea.
In looking at the case law on this area dealing with section 117 applications where there are number of children for one may have special needs the court will give that child priority in ensuring their needs are met over any equal sharing of the estate by other children.
A 2008 case held where the child who is under 18 at the time of the hearing and suffered from an illness that requires ongoing care and treatment. The Court made an Order in favour of the plaintiff for €409,000 out of the estate valued in excess of €2 million in recognition of her future needs of care and maintenance. Similarly a 2011 case the Court upset a Wills provisions which left everything to a non marital partner leaving his daughter who was a severe epileptic and on disability benefit 50% of the estate and one third share with the 2 adult children of his non marital partner. The Court held that there was a moral imperative on the deceased to give priority for his infirm daughter.
The terms of the will were not sufficient to meet this obligation so the Court varied the terms of the Will.
Remember at all stages the Court has full discretion to decide in each case whether the testator failed in their moral duty. Facts of every case are different and until they are actually clearly stated to the Court it is hard to advise the final outcome .
For example good conduct on the part of the child can entitle them to a larger share of the estate. Again the Courts have taken into account the support a daughter might have given to an elderly father during his later years .
The opposite can also be true. Poor behaviour towards a parent can diminish or even extinguish the duty owed by parents. Threatening behaviour by the adult child towards the elderly parent would be grounds for no variation in a will especially if the adult child claiming received benefits during the lifetime of the parent.
If there is anything in this blog that you feel relates to your personal circumstances please give us a call or email us in confidence to advise you on your particular situation.