Q.  My husband and I married young and have been together for 15 years. For this whole time, we’ve lived on his family farm, which my husband has run (along with his father and brother). We have two children aged 10 and 8. The farm has been in their family for three generations and I would guess it is worth millions.

My husband’s parents have always told us how lucky we will be to inherit half of this one day. However, as of today, my husband and I don’t actually own anything. The farm and the buildings on it are all wrapped up in his parents’ trust that they created years ago.

I would like to leave my husband, but he has made it clear that I’ll be leaving with only half the furniture and my car. I can’t believe I’m at this point and have no assets, made worse by the fact that both of us have worked so hard our whole lives.

All I would like is enough money to buy a small home with a mortgage I can afford, which doesn’t seem a lot to ask since my husband will, literally, one day inherit the farm. What am I entitled to?

 

A.  When a family owns and runs a farm, it is common to set up a trust structure to protect the farm for future generations. Unfortunately, a trust can complicate matters in a situation like this, where you have been contributing to the business and feel entitled to some of the asset pool, but it is not easy to access.

As a first step, you should find out how the trust has been set up, including who the trustees are (the people who make decisions about the trust), who the beneficiaries are (the people who benefit from the trust) and what provisions have been made for those beneficiaries. If you are named as a beneficiary, then you may have some income or ownership rights.

If you’re not a beneficiary, it may still be possible to make a claim against trust assets, if you have contributed to them, whether this be financially or in a practical sense: for example, if you worked on the farm, or performed maintenance like painting the home you lived in.

It will depend on whether you have already been compensated. If you were paid reasonable rates for your work, then the farm may not owe you anything more. If you didn’t receive payment at the time, then you have invested your time and forgone income for the benefit of the trust, and you may be entitled to a return now.

Also, consider your husband’s income from the farm. If he received a lower salary than you would expect, then money that should have been part of your jointly-owned relationship property is tied up in the farm and the trust. You may be able to receive compensation for this.

It’s worth noting that trusts must be set up in good faith. It’s against the law to set up or alter a trust to defeat a claim, and that includes a claim from a spouse, so pay attention to any recent changes to the trust deed which might impact you.

Bringing a claim against a trust

This is a very complicated area of the law, so as a first step you should find a lawyer experienced in these matters who can explain your rights and options.

Once you have all the information, I suggest talking with your husband again to try and find a solution that is fair to you both. It would be expensive and time-consuming to bring a claim against a trust, and I’d imagine very stressful with your extended family and children involved. Your best bet would be to reach an amicable solution yourselves.

If all the money is tied up in the farm, it might be that your settlement would need to be paid out over several years — this is something you could document in a legal agreement.

Working in a family business

In a family business, often issues of ownership, entitlements and succession planning may not be clear.

These issues are awkward to bring up, especially if you’re new to the family. However, if you want certainty over your financial future, then you need to have these conversations and have them as early as possible.

 

This article was first published in the New Zealand Herald.