Gregor Hogan emphasises the need for clarity & open succession planning between the generations
- Those advising testators should encourage clients to discuss their plans with their children to head off disputes.
- Thought should also be given as to whether appropriate restructuring during lifetime, by way of partnership or a corporate structure, may assist.
- Testators should be realistic, however, that when they have made a clear promise which is relied upon, they lose the freedom to dispose of the property in question completely freely.
A recent High Court case in which a dairy farmer’s son, Clive Shaw, is disputing whether he has the right to inherit his parents’ farm is another example of the rise in ‘one day this will all be yours’-type cases. Such claims rely on proprietary estoppel, which can turn a present promise as to future conduct into an immediate legal entitlement. That has attractions for would-be claimants as it can alleviate the vulnerability they face by relying, sometimes for a lengthy or open-ended period of time, on a promise that may not materialise.
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