When a DIY Will goes wrong – Lessons from Oga v Bourne [2025] NZHC 3685. Making a Will can seem relatively straightforward. You know who you want to leave your property to, you write down your wishes, sign the Will and put it somewhere safe. But Oga v Bourne [2025] NZHC 3685 is a good example of why there can be considerably more to a Will than simply recording who you want to inherit. A seemingly small misunderstanding in a DIY Will ultimately meant the family needed the assistance of the High Court before the estate could be administered as intended. What happened? In 2017, Joan Bourne completed a Will using a DIY Will kit purchased from a shop, with assistance from her daughter. Joan had eight surviving children. Her intention was that seven of them would share equally in her estate. She deliberately did not include one son, who had previously indicated that he did not wish to inherit from her estate. The difficulty was not with Joan’s intentions. The difficulty was with how those intentions were recorded in the DIY Will kit. The Will contained one section dealing with “bequests and legacies” and another dealing with the “residue” of the estate. Joan and her family understood the bequests and legacies section to be where they should list the people who were to inherit, so the names of the seven children were written there. They did not understand what “residue” meant and left that section blank. From their perspective, there was little sense in writing all seven names down again. Unfortunately, in legal terms those sections serve different purposes. A specific gift or bequest might leave a particular asset or sum of money to somebody. The residue, broadly speaking, is what remains in the estate once liabilities, expenses and any specific gifts have been dealt with. Simply listing the seven children’s names in the bequests section, without saying what each was to receive, did not effectively give them Joan’s estate. And because the residue clause was left blank, the Will did not properly deal with what was to happen to the remainder of her estate. What happened when Joan died? Joan died in 2022. At that point the problem with the Will became very real. Her executors could not simply obtain probate and administer the estate in accordance with what everyone understood Joan wanted. Instead, an application had to be made to the High Court under the Wills Act 2007 seeking the Court’s assistance to correct the Will. Fortunately, there was strong evidence about Joan’s intentions. Family members and the people who witnessed the Will were able to give evidence that Joan intended her estate to be divided equally between the seven named children. Importantly, the son who had been left out also confirmed that he had not expected to inherit and supported the application. The Court was satisfied that Joan’s intentions were clear and ultimately corrected the Will so that the residue of her estate would be divided equally between the seven intended beneficiaries. So, ultimately, Joan’s wishes were able to be given effect. But it took a High Court proceeding to get there, involving additional legal work, cost and delay that would not otherwise have been necessary. There was also something particularly valuable in Joan’s case: clear evidence of what she had intended. The witnesses and family could explain Joan’s wishes, and even the excluded child agreed with their account. Not every family will be in that position. Where family members disagree about what the Will-maker intended, resolving an incorrectly drafted Will may be considerably more difficult. What can we learn from this case? There are several important estate-planning lessons in Oga v Bourne. A clear intention does not necessarily make a legally effective Will. Joan appears to have known exactly what she wanted: seven children were to share her estate equally. The problem was translating that intention into a document which legally achieved it. Small words can have big consequences. Terms such as “residue”, “bequest”, “legacy”, “executor” and “beneficiary” can look like ordinary words, but in a Will they have legal significance. Misunderstanding one section of a template can change the legal effect of the document. Problems with a Will often only become apparent when it is too late to ask the Will-maker. By the time Joan’s Will needed to operate, she was no longer available to explain why the document had been completed in that way. The Court therefore had to look at evidence from other people to establish her intentions. A DIY Will can shift the cost rather than eliminate it. Saving money when a Will is prepared may prove to be a false economy if the estate later requires legal advice or Court involvement to interpret or correct it. Don’t rely on the Court being able to fix it. The outcome in Oga v Bourne was ultimately a good one for the family, but it should not be taken as meaning that an unclear or incorrectly prepared Will can simply be tidied up after death. Whether a Will can be corrected will depend on the particular circumstances and, importantly, the evidence available about the Will-maker’s intentions. A little advice now can save a lot of difficulty later A Will is one of those documents where what you mean and what the document legally says are not always the same thing. Good estate planning is not just about preparing a document. It is about understanding your family circumstances, your assets, who you want to benefit, who should administer your estate, and making sure the Will actually produces the result you intend. The lesson from Oga v Bourne is a simple one: getting good legal advice when you make or update your Will is far easier than leaving your family to resolve a problem after you are gone. If it’s been a while since you updated your Will and your circumstances have changed, or you need to create a new Will, don’t hesitate to get in touch with our team today.
