In such cases the person claiming an entitlement will detail the level of care and services provided and usually compile a retrospective claim for remuneration unpaid for fear the judge denies them any entitlement to the farm.
Such retrospective claims for underpaid remuneration may be subject to the Statute of Limitations whereby the claim cannot extend beyond six years.
SECTION 117 CLAIMS
A further not uncommon and not dissimilar type of case is what is known a Section 117 claim.
Section 117 covers cases where the court is of the opinion that the testator (person making the will) has failed in his or her moral duty to make proper provision for the child by the will or otherwise. Section 117 states that ‘the court may order that such provision shall be made for the child out of the estate as the court thinks just’.
A typical case of this nature is where a son did not inherit what he considered his fair share having devoted a significant part of his life to running the family farm. In doing so he had passed up on educational or other opportunities in life.
The definition of a child includes adopted children, step children, foster children and children outside marriage, any or all of whom can be of any age.
The court shall consider the application from the point of view of a ‘prudent and just parent.’
It considers the position of each of the children and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
The court will consider several factors in determining whether adequate and proper provision has been made for the applicant. These include:
- any amount left in the will to the surviving spouse (or else the value of the minimum statutory legal right share of the surviving spouse).
- the number of children, their ages and their position in life when the parent who made the will dies
- the parent’s means
- the age, financial position and prospects in life of the person making the claim under Section 117
- whether the parent has already made proper provision for the child
- the facts at the date of death, not when the will was made.
TIME LIMIT AND COSTS
There is a strict time limit which is six months from the issuing of the grant of probate in the deceased’s estate.
If the claim is not taken within that time frame it is statute barred and can no longer be brought before the courts. Costs are at the discretion of the court but people who fail by bringing what are deemed to be nuisance or unfounded claims will more than likely suffer the costs.
Where a person feels they have been unfairly treated as a result of the terms of a will or where no will exists, their first port of call should be a good solicitor.
The solicitor will advise on the pros and cons of pursuing one’s perceived entitlements through the courts.
If a strong case exists, the solicitor will seek the services of an agricultural consultant to act as an expert witness.
The role of the expert witness will be to detail and quantify in financial terms the claimant’s labour contribution on the farm and how this impacted in maintaining or enhancing the value of the farm and the provision of an income to the owner.
This will be presented in the form of a report and will be available to the court.
Where the case goes into court the expert witness will be required to give evidence.
In many instances these types of cases are settled without going into court. Such cases are not pursued unless they are genuine and credible. The prospect of hefty legal costs are a serious motivation to settle.
I have been involved with many such cases over the years, some that were prosecuted successfully in the courts and some that failed. However many were settled on the steps as common sense prevailed.
The message to any intending claimant is that this is a serious and potentially costly business. If you intend going down that route seek out good objective legal advice even if that means having to get a second opinion.
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