WILL DISPUTE

After forty years of marriage, my husband died and left the family property to me while I am alive – but then in his Will he said that when I die, the property is to go to his nephew – not to our only child. Can he do that even if the property is in his name only?

It used to be traditional for males to put the property in their own name only – not including the wife’s name on the title deed of the family home. But no, under normal circumstances your deceased husband cannot do that in. If when you first met your husband both you and your husband had no money and then saved up and eventually bought the family home, the law (Equity) in Australia says that under normal circumstances the wife would get the family home when her husband dies. There are precedents where in similar cases the Court had no problems changing the Will to give the surviving spouse the family home on freehold basis – meaning it will be hers and she can do what she likes with it.

These days a couple buying property usually put the property in both names in joint tenancy – meaning that if one of the parties dies, the property automatically goes to the surviving spouse. Of course, it is possible to purchase property in tenancy-in-common which means that one party can sell just his or her share.

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