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Independent.ie

Monday 16 January 2017

Legal eagle: Farmer dies without a will

Published 21/09/2010 | 05:00

Q: I am in my mid-forties and have run our family farm since I left school at 18. My father died suddenly last year without having made his will. All of the land and property was in my father's name and I was always led to believe that the farm was going to be left to me. Now I am told that all of my father's property will be split between my mother, my two sisters and me. Both of my sisters have big jobs up in Dublin.

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When I began farming with my father we had 150ac. Since then I've put blood, sweat and tears into building it up to the 270ac tillage farm it is today. I bear no ill will towards my sisters, but I know they feel they could do with the money. But if it forces us to break up the farm, it'll be a disaster for my future in farming and everything I've spent my life working at. What are my options?

A: Despite what you may think, it is still not that uncommon for people to die intestate (without making a Will). It causes untold pain, often stemming from the financial mess that it creates and can leave a legacy of uncertainty and ill will for years.

Under the rules of intestacy, two thirds of your father's estate go to your mother and the other one third will be split between yourself and your two sisters. Assuming your mother is administrating the will (as would be her right in the absence of a named executor), it will be up to her to obtain a valuation of the property and take out a 'Grant of Administration' and arrange for distribution of your father's estate.

In your situation, we will make a few assumptions. Lets value your land and buildings at €10,000/acre, which gives a total asset value of €2.7m. Two thirds of this belongs to your mother, leaving you and your two sisters with assets worth €900,000. Split equally, that leaves each of you with assets worth €300,000.

As far as I see, your mother has two main options:



  • Sell assets to raise €600,000 to pay your sisters off. When I valued your land at €10,000/ac, I was factoring in the value of the house and farmyard. Assuming you'll need to keep these, you are looking at selling land at closer to €8,000/ac. This equates to 75ac. This may have serious implications for the viability of your holding in future.
  • The second option you have is to obtain finance from your bank against the value of your holding in order to pay your sisters their share. Again, this may be very difficult in the current banking climate.

Reading the limited facts which you have outlined, it can be argued that you have a claim against your father's estate. Your case will be that you have a legitimate expectation that the lands were going to be transferred to you by your father.

This may not be a course of action which you are prepared to take since it would create a great conflict between yourself, your mother and your sisters.

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Initially I think that all parties should try to agree a fair settlement. This may necessitate each party obtaining their own separate advice from their solicitor and the eventual execution of a 'Deed of Family Settlement'.

I understand that you have been left in a very awkward situation and that none of your options are very palatable but remember, your father would probably have made some sort of allowance for your sisters, if he had made a will.

It can be seen from your example that estate planning is extremely important. Proper estate planning and advice helps avoid situations as you now find yourself in.

John C Kieran are solicitors based in Ardee, Co Louth

Irish Independent