When a DIY will goes wrong
Posted: 21 August 2026
Most people would never expect a Do It Yourself will, bought from a stationery shop to end up before a High Court judge. Yet that is exactly what happened in Oga v Bourne, a recent case that shows how a seemingly small mistake in a will can have significant consequences after the will-maker dies.
The DIY will
Joan Bourne completed a shop-bought DIY will kit in 2017 with the assistance of her daughter. Joan wanted her estate to be divided equally among seven of her eight surviving children. She deliberately excluded one son, who had previously indicated that he did not wish to inherit from her estate.
Like many people using a DIY will kit, Joan and her family encountered legal terminology they did not fully understand. They believed the ‘bequests and legacies’ section was where they should list the people who were to inherit the estate. They therefore wrote the names of the seven intended beneficiaries in that section; however, they left blank the section dealing with the ‘residue’ of the estate because they did not understand what it meant and it didn’t make sense to them to list everyone’s names twice.
Unfortunately, this seemingly minor mistake created a significant legal problem.
In legal terms, a ‘bequest’ usually refers to a specific gift, while the ‘residue’ is everything left in an estate after debts, funeral expenses, administration costs and any specific gifts have been dealt with. As Joan had listed only the beneficiaries’ names without specifying any gifts, and had left the residue clause blank, the will did not effectively dispose of her estate.
High Court application
After Joan died in 2022, her executors could not get probate of the will, so they had to apply to the High Court under the Wills Act 2007. They asked the court either to interpret the will or to correct it so that it reflected Joan’s true intentions.
Joan’s family members and the witnesses who were present when she signed the will all gave evidence that she intended her estate to be shared equally among seven of her eight children. Even the excluded son confirmed that he did not expect to inherit and supported the application.
The court found that simply interpreting the wording of the will would not solve the problem because putting the names in the wrong section made the clauses effectively meaningless. However, the court was satisfied from the evidence that Joan’s actual intentions were clear, and the will failed to give effect to them. Using its powers under the Wills Act 2007,[1] the court corrected the will by replacing the defective clauses with one directing that the residue of Joan’s estate be shared equally among the seven intended beneficiaries.
Why was this case unusual?
It is important to understand that the court does not have a general power to correct wills simply because a mistake has been made. Before correcting a will, the court must be satisfied that there was a clerical error, or that the will did not give effect to the will-maker’s instructions (where the will was prepared by someone else). In this case, the applicants argued that the will did not give effect to Joan’s instructions. The court may then correct the will to carry out the will-maker’s intentions. This requires reliable evidence of what they intended. In many cases, particularly where family members disagree or no one can clearly explain what the deceased intended, that evidence may not exist. In those circumstances, an incorrectly prepared will may not be capable of being fixed.
While in this case the outcome ultimately reflected Joan’s wishes, it came only after court proceedings, significant legal costs and considerable delay. More importantly, this result was unusual. The court was able to correct the will because there was compelling evidence of what Joan had intended. Multiple witnesses gave consistent accounts of Joan’s intentions, every interested family member agreed, and even the excluded son supported the application.
Lessons
The decision highlights several important lessons for anyone wanting to make a will. Legal documents often contain technical terms that have specific legal meanings, even though the words themselves may seem familiar. A misunderstanding of terms such as ‘bequest’ or ‘residue’ can have significant consequences.
While DIY will kits can produce legally valid wills, they rely on the person completing them to understand how the document works. A simple mistake may not become apparent until after the will-maker has died – when it is all too late.
This case also illustrates that what appears to be a saving at the outset can become a much greater expense later. While having a will professionally prepared involves an upfront cost, unclear drafting can result in litigation, delays in administering an estate and legal costs that far exceed the cost of obtaining legal advice.
More importantly, disputes over a will can place additional emotional strain on grieving families at a time when certainty and clarity are needed most.
For most people, making a will is one of the most important legal decisions they will ever make. While DIY will kits remain an accessible option for many people, Oga v Bourne is a timely reminder that preparing a will is not simply about filling in a form.
Spending a little more time – or obtaining professional advice where needed – may save your loved ones from costly litigation, unnecessary uncertainty and additional stress after you are gone.
[1] Section 31.
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