Was it ‘promised’ or just expected? Death, Assets and the subject of testamentary promises
April 19, 2023
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It is common in farming families for children to dedicate significant time to working on a family farm (often for minimal ongoing financial reward) based on a verbal promise, belief or understanding that someday the farm will become theirs.
Arrangements like this often continue for decades without any formal documentation being put in place or one party erroneously believing that ‘everything has been taken care of’ by the promising party.
Matters come to a halt however when the owner of the farm passes away and the working child discovers that, despite devoting their life to the farm, no provision has been made for the farm to pass to them. All they have to rely on is a ‘testamentary promise’ at best.
It is then up to the Courts to decide on the validity of the ‘promise’ and how that promise is to be treated relative to any other competing claims. Questions are often raised about whether the testator actually made a promise or whether the working child simply held a mistaken belief or expectation that the farm would one day become theirs. The onus lies with the child to prove on the balance of probabilities that the promise was made.
Additional complications can also arise where farmlands are held via discretionary trust structures and where the person making the promise is not in fact the owner of the land and the land does not form part of their estate on death.
Testamentary promise arguments extend beyond just farmlands. They are also raised in situations where one party has provided care or other services to another in return for the promise of an asset or larger share of an estate.
Testamentary promise cases are complex, lengthy and expensive. The best form of protection is to ensure that arrangements are accurately documented whilst all parties are still alive. This enables all parties to clearly communicate their intentions and understandings.
If you would like assistance with documenting any testamentary promises or require advice on wills, contesting estates or other estate related matters, please contact Bailiwick Legal by calling (08) 9321 5451.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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