The loss of any loved one, particularly a spouse, is already very difficult.
Receiving a nasty surprise that you have been left without much or left out of your husband’s Will completely can be devastating.
If so, the next questions is “Can a wife contest a husband’s Will?”
Fortunately, there is hope because a wife can contest a husband’s Will.
You have the right to investigate your legal options with our Will Dispute Lawyers Brisbane who offer a free case assessment and consultation.
Common Cases where a Wife May Need to Contest a Husband’s Will
These situations occur commonly in second marriages or later-life marriages where the husband already has children to an ex-wife.
Even the most well-intentioned husband can come unstuck by underestimating his wife’s needs and leaving too much to others.
However, the scope is much wider than traditional husband and wife relationships. As we’ll see below, an ex-wife may contest a husband’s Will too.
Can a wife or de facto partner Contest a Husband or spouse’s Will?
The only people who are eligible to contest a will in Queensland are a “spouse”, “child” or “dependant” of the deceased person. The wife of a deceased person is eligible to contest the estate pursuant to section 41(1) of the Succession Act 1981 Qld:
If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
Underline emphasis added by Will and Estate Lawyers Australia
Section 5AA of the Act defines spouse to include a de-facto spouse.
An ex-wife or former de-facto partner is also eligible if:-
- they were receiving or entitled to receive financial support from the deceased; and
- they had not remarried or entered into another relationship since the divorce / separation.
A parent or guardian of the deceased’s child or children is also permitted to apply for provision. For example, an ex-wife who does not receive maintenance may still be eligible to apply if she is the parent of the ex-husband’s child.
Read more: Can you contest a will if you are in it?
Now we’ve established a wife is eligible to contest a husband’s estate, we must still consider whether the Will has made inadequate provision for their proper maintenance and support.
What a Wife Must establish to make a Family Provision Application
In her affidavit supporting the Family Provision application contesting the will, a spouse must demonstrate:-
- Was the provision made for the Wife in the Will inadequate for what was the proper level of maintenance appropriate for the estate in all its circumstances?
- If the provision made was inadequate, what provision should be made for the wife?
There is no set criteria for what is considered adequate provision. What is “adequate” depends on the value of the estate and personal circumstances.
The decision about whether adequate provision has been made from a will is something the Court decides.
Factors it takes into account include the size of the estate, assistance provided to you by your spouse during his lifetime, other competing claims etc.
Contact our Will Dispute Lawyers for a free assessment and to see if we can take your claim on a no win, no fee basis.
Do any time limits apply?
Strict time limits do apply for anyone making a family provision claim in Queensland.
If you are considering contesting your late husband or spouse’s estate, ensure you comply with these time limits:-
- Give notice to the Executor of your intention to contest the will within 6 months of your husband’s death;
- File a Family Provision application with the Supreme Court of Queensland within 9 months of the death.
These time limits are crucial. If you fail to comply you will likely forfeit any right to contest your husband’s estate.
No Win, No Fee
If you meet the criteria to challenge a will, Will and Estate Lawyers Australia in Brisbane may be able to handle your case under a “no win, no fee” arrangement. This provides you with financial peace of mind while pursuing your legitimate claim.
At Will & Estate Lawyers Australia, we understand the loss of a spouse or loved one is traumatic. The succession law process can be complex and difficult to navigate without years of training and experience.
Access to justice is the cornerstone of our practice. That’s why we offer no win, no fee terms if we believe you have been inadequately provided for in a will.
Contact an Estate Lawyer today for a free case assessment and consultation. Call us on 07 3073 2405 or using the contact forms.
Office Location and Contact Details
Brisbane (by appointment only)
Will and Estate Lawyers Australia
Level 1 / 16 McDougall St
Milton QLD 4064
Phone: 07 3073 2405
Email: enquiry@willandestatelawyers.com.au
