With Burns Day just passed, there are probably few families nowadays who have as messy and complicated a personal and business life as that of the poet-farmer, Robert Burns.  His famous poem, "To a mouse", talks about best-laid plans (and fears) for the future.  The mouse with his "wee bit housie" couldn’t predict the future, or prevent the winter coming.  Farmers today can't predict the future either - but we can plan for the change that we know is happening.  Here are three key areas of change, where the best way to protect the family farm and provide peace of mind is through good planning. 

 

Family and Separation

When it comes to family law, a separation in the family can bring to light a lack of cohesive planning over the years on other matters.  If decisions have been taken with only one factor in mind (e.g. saving tax) that can become a very poor financial decision if there is an unexpected divorce. 

In Scotland, the general view is that pre- and post-nuptial agreements are likely to be treated as binding, if they meet the test of being "fair and reasonable" at the time the agreement was entered into.  However, we still await a case which thoroughly tests the boundaries of what "fair and reasonable" means.  The most recent case is M v M, from 2021, which was described by the judge as an "extreme case", with a very vulnerable spouse pushed to hand over almost all of his share of the matrimonial property, for fear that if the agreement was not signed, his wife would leave him.  In that case, perhaps unsurprisingly, the agreement was overturned.  However, it is likely that an agreement made with legal advice by both parties, and without unfair advantage, would be upheld - even if it led to an unequal split of assets. 

It is of equal importance, though, to ensure that the business arrangements are considered thoroughly,  and in the round.  Things to consider might include:

  • Is there a written partnership agreement?  If yes, is it no longer fit for purpose?  A clear and updated partnership agreement can solve a number of potential problems on separation.
  • Is it clear what assets are held by the partnership - most importantly, whether the land is a partnership asset or not?
  • Is everyone's role within the business thought-through and fairly remunerated, whether partners / business owners or not? 
  • If gifts or inheritances are to be made, are these to be transferred in such a way that they will be shared with the beneficiary and their spouse, or are they intended to be ring-fenced as "non-matrimonial property"? 
  • If other family members are to be brought formally into the business, have the full consequences of this been considered, as well as just allowing a temporary saving of tax?

Lucia Clark, Partner in Morton Fraser MacRoberts’ Family Law team and author of ‘A Practical Guide to Divorce and Farming in Scotland’.

 

Succession and Inheritance Tax

Farms are often passed from generation to generation and as a result, focus often turns to protecting the family's farming business.  Aside from any concerns about relationship issues and the threat imposed by them on the future of the farm, many turn their attention to finding the right successor(s) to provide the right stewardship for the future of the farm.  That can involve difficult conversations and decisions but it can be a huge relief to all interested parties to actually begin to talk about such matters.

Sometimes that is just not possible though, whether because relationships have become so strained or non-existent that the very idea of sitting around a table would be too farfetched, or because a party is not able to do that, whether through incapacity or because they are too young.  As a result, many farming families use a Trust to help to manage succession of the farm, ensuring that the chosen successors can benefit from the farm, while also retaining an element of control of it. They can also protect the farming business from claims by children of their Legal Rights in your estate, or from spouses/cohabitees when relationships breakdown.

For those who have been put off using a Trust before, the Scottish Parliament has just voted to pass a new Trust and Succession (Scotland) Bill which modernises Trust Law and will affect new Trusts as well as those already in existence.  It also changes what happens when someone dies without a Will or if any part of their estate falls into intestacy and so it is important to make sure your Will is up to date and reflects your wishes.

No discussion on succession planning can ever be complete without consideration for tax and inheritance tax in particular.  It is important to review your tax planning periodically given that any changes to your circumstances or to asset values, or any new business diversification activity can have a huge effect on how existing tax provision might apply to your estate.   

The ever-changing tax rules also dictate that a regular review of your estate planning is a must.  There has been much speculation of late that Inheritance Tax may be axed or radically altered, but even if that does not come to pass in the budget scheduled for 6th March this year, a change of Government could bring a new era of tax policy. 

Catriona MacPhail, Partner in Morton Fraser MacRoberts’ Asset Protection team.

 

Property and Business

It is not uncommon for there to be ambiguity in a farming partnership around the ownership of the farm. Is it owned by one or more of the partners, on an individual basis, or is it owned jointly by the partners as a partnership asset? Considering the capital value that land and buildings represent to a partnership it is critical that this is properly documented and understood.

Usually there would be a statement within the Partnership Agreement that the land and buildings are to be treated as a partnership asset. Similarly, the title deeds quite often demonstrate that the partner are holding title in their capacity as partners of the business. However, it is perfectly possible that the farm could have been introduced as an asset of the business some time after the creation of the partnership, with title remaining in the name of the individual partner who introduced the asset, or that there has been a change of partners within the business and the "previous owners" are still disclosed on the title. From 1 April 2024 persons within the latter categories could be caught by The Register of Persons Holding a Controlled Interest in Land (RCI).

The RCI distinguishes between two categories of person: a Recorded Person and an Associate. The Recorded Person is a person that owns or tenants land in Scotland. An Associate is a person which exercises significant influence or control over the Recorded Person's ability to make decisions in relation to that land that they own or tenant, which is not in and of itself clear from reviewing the title or lease. The purpose of the RCI is to strip away this veil with the public disclosure of the Associate and apply transparency to the landholding.

Applying these concepts to the above circumstances, the Recorded Person would be the partner introducing the asset and the Associates the remaining partners.

The unwitting could find themselves committing a criminal offence and liable to a fine of up to £5,000 to either fail to disclose to the requirement information of provide false or misleading information.

In summary, it is important to keep business and personal planning under constant review and consideration and ensure appropriate advice is sought and received. To do otherwise is perhaps best summed up by the final lines of Burns' famous poem: "an’ forward tho’ I canna see, I guess an’ fear!".

Matthew Barclay, Partner in Morton Fraser MacRoberts’ Agricultural and Rural team.