Skip to main content
Bell & Senior Logo
(07) 5532 8777
Book Now

Can a spouse challenge a will that leaves the family home to the other party?

Wills, probate documents and a fountain pen on a desk representing Queensland estate planning

Can a spouse challenge a will that leaves the family home to the other party?

In Queensland, a surviving spouse (including a de‑facto partner) who feels inadequately provided for by a will can bring a family provision claim under the Succession Act 1981 (Qld). This claim is separate from a challenge to the will’s validity and focuses on whether the will made adequate provision for the spouse’s proper maintenance and support.

Who is eligible to claim?

  • A husband or wife of the deceased at the time of death.
  • A de‑facto partner who lived with the deceased on a genuine domestic basis for at least two years before death (or less if there is a child of the relationship).
  • A former spouse who was still being maintained by the deceased at the time of death may be eligible in limited circumstances.

What must be shown?

The applicant must prove that the will (or the intestacy rules) did not make adequate provision for their proper maintenance and support. The court does not simply look for an equal split; it examines the claimant’s needs in light of:

  • Age and health
  • Financial resources and earning capacity
  • Duration of the marriage or de‑facto relationship
  • Contributions to the acquisition, conservation or improvement of the deceased’s estate
  • The size and nature of the estate
  • Any existing entitlement to the family home (e.g., a right to reside)
  • The need for a home that matches the claimant’s accustomed lifestyle

These considerations are drawn from Queensland case law such as Morris v Morris [2025] QSC 7 and the general principles under sections 41‑45 of the Succession Act 1981 (Qld).

Time limits – act quickly

  1. Notice to executor – must be given within six (6) months of the date of death (written notice of intention to claim).
  2. File application – must be filed within nine (9) months of the date of death (unless the court grants an extension).

If notice is not given within six months, the executor may safely distribute the estate after that period. If notice is given but the application is not filed within nine months, the claim is generally barred unless an extension is granted (which requires showing lack of knowledge, no prejudice to beneficiaries, and that the estate remains undistributed).

Typical outcomes for the family home

When the family home is the principal asset and the claimant’s needs are significant, the court often orders:

  • A specific interest in the home (commonly ranging from 50 % up to 85 % or more).
  • A right to reside in the home for a defined period (frequently for life or a set number of years).
  • Occasionally, the court may order the home to be transferred outright to the claimant if other assets are insufficient to meet their needs.

In Morris v Morris [2025] QSC 7, the widow received an 85 % interest in the $1 million family home plus a ten‑year right to reside, reflecting her age, limited assets, health issues and long marriage.

Practical steps if you wish to pursue a claim

  1. Gather evidence – collect the will, death certificate, marriage or de‑facto relationship proof, details of the estate (including valuations of the home and other assets), and documentation of your financial position, health, and contributions.
  2. Notify the executor – send a clear written notice of your intention to make a family provision claim within six months of death.
  3. Seek legal advice – a solicitor experienced in succession law can help you prepare the application, ensure compliance with deadlines, and assess the strength of your claim.
  4. File the application – submit the originating application and supporting affidavit to the Supreme Court of Queensland (Family Division) within nine months of death.
  5. Consider mediation – many cases are resolved through mediation before a hearing, saving time and costs.
Previous Question Who Should Hold My Enduring Power of Attorney and Health Directive? Next Question Is a Copy of an Advance Health Directive Legally Binding in Queensland?
← Back to Wills & Estates
Call Us Book Time