Family Provision Claims for Farmers and Farming Families

Published 30 Oct 2012

Author: Garbis Kolokossian

With a large and ever growing farming community in Australia with a steadfast cultural backbone, I find that I am asked about the Courts position on family farms and claims that could be made by eligible persons. This question can only be answered using references to relevant cases and a study of the scholarly approach to this issue.

Unlike other assets in Australia, farms or family farms have distinctive differences causing immense difficulty in the manner in which testators plan for the future and better yet, make decisions with respect to provision left to their issue. Farms are usually a source of income, community and heritage for most people in and around rural areas of Australia. As such, most people find it very difficult to see the correlation between farming community expectations and the ever developing expectations of the Supreme Courts of Australia in the interpretation of Family Provision legislation.

Farming, like every industry, has norms, biases and expectations. The reality is, in family farms, there is an expectation that the issue of the deceased actively participate in the working of the land. In a study conducted by The Rural Development Centre, University of New England Armidale, it was suggested that "farming is seen as man’s vocation, with great value placed on self-reliance, independence and hard work. Central to this ideology is the concept of patriarchy whereby women are inherently viewed as dependents, being either the wife or daughter of a farmer" [1]

 Traditionally it was not unusual, in farming families, for an expectation to arise that the children grow working the land, assisting parents in the maintenance of the property and generating wealth for the greater good of the family. This in itself raises a number of questions with respect to the contribution of the issue in the development of and the maintenance of the main asset held by a testator. Due to cultural expectations and the ultimate desire to maintain the "family farm", it can be said, with respect to previous cases such as Public Trustee v Brown[2] and Ahearn v Ahearn[3] that most testators traditionally left the farm or the property, to the sons who worked the land, leaving the other siblings with little to nothing out of the estate. It could be said that the primary reason for making decisions of this nature was to (keep the farm in the family, a desire to reward the son or sons who have worked the farm for many years on a low income, usually on the understanding that one day he or they would inherit the farm and the need to provide the surviving spouse with a retirement income. The suggestion is that those people from farming communities understand that there is an underlying expectation to keep the farm within the family.

Family Provision Legislation, in particular the Succession Act 2006 (NSW)[4], sets community expectations on a testators obligation and responsibility to provide for the "maintenance, education or advancement in life of an eligible persons".[5] The above mentioned legislation clearly sets out the matters that should be considered by a Court[6] when making a determination as to the value of one’s claim and the range of possible orders that can be made.

In recent years some cases in other jurisdictions have been heard with respect to the issues associated with the provision for issue from a farm. Even though, as mentioned above, community expectations dictate that the family farm should remain intact and uncompromised, cases such as Re Guthrie[7] demonstrate the courts capacity to, and willingness to, order the sale of assets for the proper maintenance of the testators issue if the need arises.[8] In the above mentioned case, Bollen J noted "Of course if the extent of Stella's needs is so great that she should have a large order even at the expense of diminution in value of the residuary estate and even at the expense of sale of Myrtle Grove, then she must have a large order.[9] An order of this nature, with the effect of compromising the 'family farm' was seen in the matter of White v Chambers[10] , unlike other matters, the facts of this case in particular, demonstrated that the son of the deceased, had not worked the farm from his youth but merely returned there when his other occupation failed.

Further, in Roberts v Roberts and others [11] the court concluded at paragraph 34 that "it is now well established that the sons of farming parents do not have a right to inherit the farms to the exclusion of their sisters if proper provision has not been made for the sister".[12] No recent case suggests that the decision to provide for daughters or those children with need, that have not contributed to the maintenance of the property, is a guiding principle that would need to be adopted by the Courts. On the contrary, cases such as Young v Young[13] and Roberts v Roberts and Others have established that each and every case will need to be considered and valued on its own facts and circumstances.

At a time when Australian Courts are juggling the changing values and expectations of community, the question about traditional community views may arise when considering the legislation, and the needs for testators to adequately provide for those eligible persons. On face value, it would seem as though the Courts do note care too much about the cultural community standards adopted by rural communities, the reality is however that the Courts, who have autonomy to interpret the facts of each case independently, take into consideration all relevant facts such as the time invested on the 'family farm' the needs of the eligible persons and the ramifications the sale of the farm will have on the livelihood of those people who have competing claims.



[1] Poiner, (1990), ’Changing Families,Challenging Futures’ 6th Australian Institute of Family Studies Conference Melbourne 25-27 November 1998)

[2] Public Trustee v Brown (1915) 34 NZLR 951.

[3] Ahearn v Ahearn [1917]St R Qd 167.

[4] Succession Act 2006 (NSW)
[5] Succession Act 2006 (NSW) s 57.

[6] Succession Act 2006 (NSW) s 60.

[7] Re Guthrie (1983) 32 SASR 86

[8] Re Guthrie (1983) 32 SASR 86
[9] Re Guthrie (1983) 32 SASR 86

[10] White v Chambers (WA),Franklin J, No1404/82, 27 February 1985, unreported

[11] Roberts v Roberts and others (1992) 9 WAR 549.
[12] Roberts v Roberts and others (1992) 9 WAR 549 at para 34.

[13] Young v Young SC (WA), Malcolm CJ, No 1193/83, 3 April 1989, unreported

  • NSW Offices
  • North Parramatta
  • Sydney
  • Penrith
  • Ryde
  • Blacktown
  • Liverpool
  • Chatswood
  • Campbelltown
  • Erina
  • Newcastle
  • Wollongong
  • Ballina
  • Tamworth
  • Wagga Wagga
  • Miranda
  • Rockdale
  • Baulkham Hills
  • Bondi Junction
  • Mudgee
  • Tweed Heads
  • VIC Offices
  • Melbourne
  • QLD Offices
  • Brisbane
  • Bundall
  • ACT Offices
  • Canberra City
Phone 1800 004 878 to book a free appointment