Wills for Crofters – our six top tips

Making a Will is crucial to ensure your assets are passed on exactly how you wish when you are no longer around. Crofters aren’t exempt from this. In fact, there are multiple factors which mean that it could be argued that a well thought through Will is even more essential for crofters to put in place. Crofting law is complex, so we’re sharing the six most important considerations for crofters to take into account before making a Will to ensure it is valid and executed as you expect.

Your Status

If you have an interest in a croft, you will be considered as one of the following:

1. Tenant
2. Owner Occupier
3. Owner/Landlord of a Vacant Croft
4. Landlord

You can find out your status by searching the Register of Crofts – Register of Crofts | Crofting Commission (scotland.gov.uk). It may be that you have various statuses depending on the number of crofts you have an interest in. If you do not agree with the Register of Crofts it is important that you draw this to the attention of your solicitor who can investigate matters further.

Type of Croft Land

The most common types of croft land are:

1. In-bye
2. Apportionments
3. Grazing Shares
4. Deemed Crofts

Most crofters will have an understanding of their land type, but it’s always useful to check this at the point of making a Will. Many crofts consist of a combination of the above and there can often be queries which need to be ironed out before finalising your Will. For example, are your apportionments included in your title deeds or are they still tenanted from the estate?

Your Home

It is common for a crofter’s home to be located on their croft. An executor has no legal authority to remove land from a croft (including the house). Accordingly, if your home hasn’t been decrofted or resumed, it legally forms part of the croft and will be treated under the same regime as the croft. For instance, you will not be able to provide for separate bequests for the house and croft.

Your Bequests

To ensure your Will is valid, it must contain a detailed description of each croft you hold an interest in. It’s therefore important that your details are correctly shown in the Register of Crofts and that you inform your solicitor of every croft interest you have, even if you feel it is insignificant. More often than not, elements of a croft are omitted from a Will which can complicate and prolong the process in transferring your croft interest to your nominated beneficiary after you pass away. This is mainly because any croft or part of a croft which is excluded from your Will then must be treated as though you didn’t have a Will for the purpose of passing it on to a beneficiary.

Your Beneficiaries

Often, clients wish to divide their estates equally among their family. However, this is not always possible with crofts and can sometimes be impractical.

In particular, if you have a tenant’s interest you can only leave that to one person. This is something to consider further if you want, for instance, to leave your house to one family member and the actual croft land to another. Although there are ongoing discussions to reform the law in this area, the current view is that a tenant can only be one individual. It is important to note that legal entities, such as companies, trusts and charities cannot be a tenant, which limits your options further.

There’s nothing to stop a crofter bequeathing a croft they own to multiple beneficiaries, but it is important to consider how this would work in reality. For instance, if a crofter bequeaths their croft equally among their three children, will they all work harmoniously together and actively manage the croft? Or, will it be left to one child to work with the remaining two attempting to reap the benefits from that?

The Crofting Duties

It is important to consider the crofting duties when deciding who to bequeath your croft(s) to. The main duties to consider are as follows:

• A crofter must reside on their croft or within 32 kilometres of the croft
• The croft must be cultivated and maintained
• A crofter cannot misuse of neglect their croft

Can the beneficiaries in your Will comply with these duties? It should be noted that these duties will only apply if you are a tenant or owner occupier and won’t be applicable if you are a landlord or owner/landlord of a vacant croft.

For further information on any of the details raised in this article, please get in touch.

You may also be interested in the following articles:

• The importance of having a farming partnership agreement
• Option for Lease Agreements – our top tips for landowners
• R.E.S.P.E.C.T… my testamentary wishes

Legal disclaimer