Family farms are subject to a distinct rural ideology in which
farming is considered a male vocation. The cultural values of
farming dictate that a son will inherit the family farm. In
general, the Courts do not interfere with this sentiment –
whether the matter at hand is a family law property matter, or a
claim for further provision from a deceased estate. This article
specifically deals with the Court's approach to claims for
further provision from a farming estate.
In family provision claims, the Court faces a conflict
the moral duty to reward sons who have contributed to the
family farm; and
providing for other children, as is required by family
A son's "moral claim" or expectation of inheriting
the family farm is elevated where he has been working on the farm
for his whole life for little or no wages. It is common for a
father to indicate to that son that he will one day inherit the
farm. This promise serves as incentive for the son to commit to
working on the farm, and is called a testamentary promise. On the
basis of a testamentary promise, a son may invest a lifetime of
labour on the farm which he expects will be reciprocated by a later
transfer of title.
Family Provision Law
Family provision legislation creates an obligation on testators
(Will-makers) to make proper provision for the maintenance and
support of their dependants. This places a limit on testamentary
freedom, which is a testator's freedom to leave their property
in accordance with their wishes, no matter how unfair or
Family provision legislation is neutral to the rural tradition
of maintaining property in the hands of a son. The sole concern of
the legislation is to make sure that all dependants are adequately
provided for – notwithstanding a son's expectation of
receiving the entire farm.
Under family provision legislation, the testamentary promises of
a deceased are not expressly relevant. In any event, verbal
promises are difficult to prove with any degree of certainty. Even
if a testamentary promise can be proven on the balance of
probabilities (that is, it is more likely than not that a promise
was made) it may be that subsequent actions or words revoked that
promise. For a want of certainty, the Court will recognise the
shadow, rather than substance, of a testamentary promise. The Court
will place greater emphasis on the "moral duty" owed to a
farming son than a testamentary promise.
There is no legal principle that sons have a right to inherit
the farm. The Court will consider whether the testator, who
received value because he made certain promises, owes a moral duty
to fulfil that promise.
It is inappropriate for the court to approach family farms with
a view to equality. The farm cannot be divided or sold without
destroying it as a viable entity and source of income. For this
reason, the Court usually upholds the rural norm in favour of one
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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