23rd July 2025 ❘

Farming and Contentious Probate – Trends and mitigating the risk

Farming and Contentious Probate – Trends and mitigating the risk

By Johnny Coulthard, Dispute Resolution Partner

Farming and Contentious Probate – Trends and mitigating the risk

Contentious Probate is an umbrella term that can cover a variety of claims that can follow after a person’s death. These claims can vary but can include direct challenges to the validity of someone’s will, a claim against an estate for reasonable financial provision, or claims about the ownership of partnership assets.

In an agricultural context, these disputes can regularly arise, particularly if there has been a lack of effective succession planning and professional advice.

Farms can be complicated and diverse assets worth significant value, with different revenue streams. It is common therefore for there to be competing needs and interests amongst family members when it comes to succession. There may also be difficult family dynamics or the need to provide for an elderly relative.

These factors can make it difficult for the testator to please everyone and can often lead to succession planning being ignored, resulting in outdated wills that do not reflect the present farming reality and family dynamic. This can be a platform for disputes.

In our years of specialising in contentious agricultural estates here at Burnetts, we’ve observed that there are particular themes we see on a regular basis – these include:

  1. Broken promises – Promises can often be made to adult children that they will inherit the family farm only for that promise not to be honoured in a Will. In these instances, if a promise has been relied upon, which in a farming context often means working long hours at reduced pay on the assurance that “one day the farm will be yours”, the promise may be enforceable, even if the Will leaves the farm to someone else. These claims are known as Proprietary Estoppel.

  1. Invalid Wills – There are a number of grounds on which a will may be invalid. In our experience, disputes in an agricultural context will often stem from concerns about the capacity of the testator or about undue influence.

It is not uncommon for testators to make changes to their Will at a later stage in life and perhaps at a stage where their health is in decline. As a result, this can make

testators vulnerable to undue influence or give rise to concerns about testamentary capacity. This can be complicated in a farming context as often an elderly testator will be the sole owner of a significant asset, the family farm.

The risk of claims of this nature can be mitigated by getting succession advice from an expert in this area. A number of safeguards can be put in place to record that both the testator has capacity and that they are acting free from any undue influence.

  1. Partnership Disputes – Often farms will trade through either a written or unwritten partnership. If the farm land and buildings are held for the benefit of a partnership, they may not pass via the terms of the legal owner’s Will. Instead, the value of the farm may be split between the partners of the farm. This can be a particular problem if there is no partnership agreement.

This can lead to disputes as to whether an asset, such as the farm, is an asset of the partnership or whether it is owned individually outside of the partnership (with the partnership simply having a right to occupy the farm).

There may also be a dispute over valuing the deceased’s interest in a partnership and therefore in establishing how much is due an estate. It is important to recognise that if there is no partnership agreement the terms of the Partnership Act 1890 will apply and the starting position will be that the partnership will dissolve on the death of a partner. This can often lead to unintended consequences which can raise complications for the future of the farm.

One of the key problems we see in this area, is the failure to have a written and up to date partnership agreement that records both what is to happen on death and how the farming assets are to be owned.

  1. Inheritance Act claims – Inheritance may, in a farming context, in the interests of succession, favour one child over others in terms of the value of the assets that are being passed on. The farm may for example may pass to one child while leaving siblings with significantly less.

However, if there are children who are in financial need, or people who are financially dependent on the deceased, they may be able to claim reasonable financial provision from an estate despite the terms of the will.

These claims may also be made by a spouse although there is no requirement for a spouse to show they have a financial need/dependency in order to bring a claim.

The awards the Court can make in these types of claims can vary but can include lump sum payments, the transfer of property, the granting of a life interest in a property or periodical payments.

Claims like these must be made within six months of the Grant of Probate being issued.

What can be done to reduce the risk of a contentious probate dispute in an agricultural estate?

There are several important steps that should be taken. This is not only to reduce the risk of contentious probate, but also to ensure the sustainable continuation of the farming business.

These can include:

  1. Keeping a record of partnership assets – Keep a confirmed and agreed record of what assets are held for the benefit of any partnership and what assets are owned by partners personally.
  2. Make sure a Will reflects the terms of the partnership agreement – Make sure the Will and partnership agreement clearly set out what should happen to someone’s interest in the partnership when they pass away. This clarity can significantly mitigate against the risk of dispute. It is important to ensure the Will is written with regard to the terms of any partnership agreement.
  3. Regularly review and update your Will – Make sure your Will is up to date to ensure the succession plans reflect the working reality of the farm (and any promises made) and that anyone who may have a financial claim against an estate is provided for.
  4. Keep the partnership agreement up to date – Ensure partnership agreements are up to date and reflect the working reality of the farm, both terms of the ownership of assets and distributions of profits.
  5. Obtain professional advice – When you instruct a lawyer to prepare a Will, they should keep a contemporaneous record of the key decisions made and the justification for the same. This evidence can be crucial if there is any future dispute about the deceased’s intention. Again, this can seriously mitigate the risk of future dispute.

A lawyer with expertise in this area will also be able to advise on the steps that can be taken to mitigate against the risk of a dispute arising. This may be by arranging a capacity assessment to reduce the risk of a Will challenge or ensuring that those in financial need are left with reasonable provision.

What happens if there is a dispute?

It is important to get specialist advice as soon as possible. Often in these cases, steps have to be taken quickly to ensure assets are not disposed of. It may also be possible to seek to come to a resolution with the relevant parties at an early stage and early legal advice can help to achieve this.

This is a very specialist area of law and it is important to get expert advice. We are specialists in both non-contentious and contentious agricultural estates. We can offer expert succession advice to mitigate against contentious probate in this area and provide expert representation when disputes arise. Just get in touch and we’ll be happy to help.