With Brexit, the only real certainty to date is more uncertainty. At the time of writing (and who knows what the position will be by the time you have finished reading this article!) Brexit is still scheduled to take place on October 31. Whether or not that happens, farmers and landowners remain in the dark on what farming subsidies will be available to them on leaving the EU.
Last year Fergus Ewing MEP, Cabinet Secretary for the Rural Economy and Connectivity, stated in the Scottish Government's consultation on rural funding proposals, A Future Strategy for Scottish Agriculture, that "no change is not an option". He added: "Even if Scotland were to remain in the EU, there would be a new version of the CAP [common agricultural policy] for 2021-27, for which there are already proposals for a lower overall budget and reform in some of the same key areas we have considered."
As of now, the future level of agricultural support payments, and the nature of that support, is unclear. The forthcoming changes in relation to EU seasonal workers, the backbone of the agricultural seasonal workforce, will also affect farmers, as will changes in tariffs.
Brexit has also created political uncertainty. A general election appears imminent - mooted for early December though, like much of the current political timetable, subject to change - and would mark the third time in four years politicians have taken to the polls.
The inheritance tax regime is one area in which both major parties propose change. Chancellor of the Exchequer Sajid Javid has hinted that the Conservatives may cut inheritance tax, possibly in the forthcoming budget. On the other hand, John McDonnell, shadow chancellor, recently suggested that, if elected, Labour would introduce a tax on lifetime gifts, and the nil rate band - the amount that can be passed on free of inheritance tax - would be reduced to £125,000. Labour also has its eye on agricultural property relief. In Scotland, the SNP has already stated it would like inheritance tax to be a devolved issue and has outlined its intent to clamp down on what it perceives are inheritance tax "loopholes". Against this backdrop, it is difficult for farmers to plan for the future of their business.
It is important, therefore, that farmers and landowners ensure their tax and succession plans are up-to-date and that they are prepared for, and can react to, any changes that lie ahead. Having a will in place, with provision for the creation of a discretionary trust, affords a level of stability in times of uncertainty. A discretionary trust will does what it says on the tin: it leaves assets in trust with no beneficiary absolutely entitled. The beneficiaries and their entitlement is at the discretion of the trustee or trustees, who can respond to economic changes or any shift in the tax climate.
Careful selection of trustees, and a 'letter of wishes' to guide the trustees in their decision making, is important. A letter of wishes can set out who the testator - the person making the will - wishes to inherit the farmland and who they wish to inherit cash or other assets. It can also set out who will bear the cost of transferring the land, who will require to bear any inheritance tax, and at what age beneficiaries may inherit.
Many of our farming clients operate in a farming partnership. For those farmers, one of the key documents is the partnership agreement. A carefully crafted partnership agreement will set out the terms under which the business operates and detail, at a time of change, what happens within the partnership. This would typically include what happens on the death, or loss of capacity, of one of the farming partners. It may also clarify what land is held as partnership property, thereby minimising confusion while also assisting in overall tax planning. For these reasons, it is important that this agreement dovetails with the terms of a will because the partnership agreement, as a contractual agreement, may override the terms of the will.
Another way to minimise uncertainty is to gift land under the current familiar tax regime. Plots, with an element of hope value - based on the expectation of securing planning consent to develop - are a useful way for landowners to pass on assets to both farming and non- farming children. However, careful consideration should be given to the tax implications of gifting land to avoid a large capital gains tax liability for the landowner.
In times of seismic political upheaval, planning for the future of family farming businesses requires expert, professional advice to successfully navigate the choppy waters ahead.