My parents left the family farm to my sibling. Can I contest?

Published 27 Jul 2017

The topic of succession is complex in the farming world. The sector has traditionally followed the rule of primogeniture, whereby the first-born son takes over the family farm and continues to work the land.

However, this approach is becoming increasingly rare in modern-day agricultural inheritance. In fact, a recent report from business advisors Chapman Eastway showed only 3 per cent of farming families follow the primogeniture model anymore.

More than half of farmers now believe assets should be distributed fairly, although not necessarily equally, while 34 per cent think an equal split is the best approach.

Nevertheless, if your parent was a farmer and left the entirety of their estate to a single sibling, you may be wondering whether you can contest the will.

What does the legislation say?

Under the Succession Act 2006 (NSW), the testator - the person who wrote the will - has an obligation to provide for the maintenance, education and further advancement in life of eligible people. This includes leaving an appropriate legacy for spouses, children and dependents.

If you are a child of the deceased and have not received anything from the estate of your parent, you can pursue a family provision claim. This is often beneficial for daughters of the deceased if their farmer parent uses the primogeniture rule of succession.

"Women make up half of the agricultural workforce and represent a large part of the next generation of workers, managers, and decision makers, yet Australia has fallen behind other developed countries in its recognition and support for female farmers," the Chapman Eastway report stated.

"In agriculture, there is still widespread exclusion of women and girls from farm management, financial decision-making and inheritance of land."

Bucking traditional trends

In 'Roberts v Roberts and others' (1992) 9 WAR 549 the Supreme Court of Western Australia found that the sons of farmers should not have the right to inherit the entirety of an estate if their sisters have not been adequately provided for. 

A judge must still evaluate each case on its merit, so it's important that anyone pursuing a family provision claim against a farming parent's estate should contact an experienced contesting wills lawyer to assist them.

Gerard Malouf & Partners Will Dispute Lawyers has decades of experience fighting will disputes in court, while offering a guaranteed no-win, no-fee service for clients. Contact us today.

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