Fairness vital in will creation

Preparing wills or a succession plan can be difficult at the best of times.

This is particularly the case for farmers, who often have complex business structures, such as trusts, partnerships, companies and self-managed superannuation funds that all need to be considered in the process.

To further complicate matters, one child may have worked on the farm for many years, while others may not have made any contribution to the farming enterprise. 

Those having difficulty working through this process for wills or estate planning should not be too hard on themselves.

Whenever I am taking instructions for a farm succession and estate plan, I advise people to follow two rules.

Firstly, try not to rule from the grave. 

Secondly, the distribution of an inheritance between farming and non-farming children does not need to be equal, but it should be fair.

The business realities of farming cannot be ignored.

Farms increasingly rely on scale to be viable and so cannot be easily divided up.

If the farming child has any chance of continuing the farming enterprise he or she cannot be overly burdened with debt to pay out a sibling. 

Conversely, the non-farming child should not be ignored.

The key to formulating a fair estate and succession plan is to do just that - plan. 

Try and invest in off-farm assets and build up a superannuation balance. These assets can then be passed to non-farming children. 

If obligations are put on the farming child to pay out or provide for siblings, those obligations must be clear, affordable and finite.

The reality is that we will not know if our estate plan is a success. All we can do is structure it as best we can taking into account the many competing factors.

But, the last thing you want to do is leave a mess. That is not how anyone wants to be remembered. 

By Joe Anderson, Partner

This article was originally published in The Stock Journal on Thursday 9 June 2016. 

Practice Area: Farm Law , Wills & Estates

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