York For many farming families, choosing executors for a Will may seem a straightforward decision. It is common for the person making the Will, known as the testator, to appoint adult children, grandchildren, nieces or nephews as executors. They are often also beneficiaries, with each receiving an equal share of the residuary estate – the assets remaining after any specific gifts have been distributed. In a straightforward estate, where the main asset is the family home, this arrangement rarely causes difficulties. However, farming estates are often far more complex and can give rise to disputes.
A common scenario arises where some or all of the adult children have worked on the family farm during the testator’s lifetime. As families grow, the farmland may have effectively been divided so that each new family farms its own area of the holding, often on an informal basis, with no formal tenancy arrangements, such as an Agricultural Holdings Act (pre-1995) or a Farm Business Tenancy (post-1995). The position becomes more complicated where one or more executors or beneficiaries do not occupy or farm the land. Upon the testator’s death, those occupying the land may wish to maintain the status quo and continue farming as they have done, often for decades. In the absence of rental income, this arrangement can frustrate the non-occupying beneficiaries and create tension between the executors. As executors are generally required to act unanimously, this can result in the administration of the estate coming to a standstill, increasing any existing tension and frustration.
In such a scenario, the executors may also face a conflict of interest, as they have a duty to act in the best interests of the estate rather than their own personal interests. In such circumstances, it is prudent for the executors to obtain independent legal advice. Early legal advice is often enough to help matters move forward. A solicitor experienced in probate disputes can explain the duties of executors, provide objective advice and help identify practical solutions. In some cases, mediation can also help family members identify common ground and reach an agreement without the need for court proceedings. If all else fails, an application to the court may be required. The court has the power to either give directions in relation to the administration of the estate or, if it is felt that the relationship is wholly unworkable, to remove and appoint alternative executors. If it is felt that an executor has acted unreasonably, the court can also order that they are personally responsible for the costs of the application. Court proceedings are expensive and time-consuming and are generally a last resort.
Testators should therefore give careful consideration to how the proposed executors are likely to work together and pre-empt potential disputes by careful thought about how the estate is to be divided, with clear provisions about how any pre-existing arrangements are to be treated.
Anyone asked to act as an executor of a farming estate should seek professional advice at an early stage where disagreements appear likely. Taking prompt advice can help ensure the estate is administered efficiently while preserving valuable family relationships wherever possible.
For further information about wills or probate disputes, contact our Litigation & Dispute Resolution team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email law@warekay.co.uk.
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