Property Clinic: Can we make our will dispute-proof?

Q. My wife and I have contacted our solicitor with a view to making our will. We have a small farm and two sons. It is our intention to divide the farm between the two boys. We do not want any issues in the future and we want everything to be unambiguous. We fear there may be issues as the farm cannot be divided equally. There is a house in the centre and what we want to do is leave that to one of the boys together with an entrance and garden both to the front and the rear. The other boy will receive the remainder. How should I do this and be sure the entire is dispute-proof?

A. You are right to deal with this land division in a formal and definitive manner that will avoid ambiguity and misunderstanding in the future. The extent of the lands you and your wife wish to give to each of your sons is initially a matter for both of you to discuss with your sons – if and when they are old enough. As part of this process you should mark out a severance line to indicate the extent of the area containing the house, gardens and entrance which you propose to give to one son. Discuss this with your sons and make adjustments if required to ensure agreement.

There are two additional factors you should consider:

(a) Which son will own the new boundary wall or fence, or will it be a party wall/fence? If it is to be a party wall/fence it should be constructed on the legal boundary, ie, on the severance line. If it is to be in the ownership of one son it should be constructed on his side, so that the face of wall/fence defines the legal boundary.

(b) Are there any services for the house including a septic tank and percolation area which will require easements such as wayleaves?

Having agreed the location of the severance line and services, if any, you should then engage a chartered geomatics surveyor to formally mark out this line and survey it and the services. The survey will include the house and farm perimeter boundary. The objective is to prepare a deed map for each of the new properties and maps for registration of the new titles. The deed maps will be the definitive maps and will therefore be prepared to a relatively large scale and include dimensions. They should contain explanatory notes, especially in relation to the farm perimeter boundary, the proposed boundary between the new properties, the extent of services, if any, and extent of easements required for such services. Your solicitor should be briefed accordingly. The maps for registration of the new titles, or division of existing title if registered, will be submitted with the application for registration to the Land Registry (PRA). They will be prepared in accordance with the Land Registry mapping guidelines. The Land Registry operates a “non-conclusive” boundary system.

Your surveyor will take into account your stated requirements and will advise you accordingly in relation to the amount of detail required on these maps.

Patrick Shine, chartered geomatics surveyor, chartered engineer and a member of the Society of Chartered Surveyors Ireland, scsi.ie