Wilkinson v Kirkham: court construes "the daughter" as gift to both daughters of deceased's cousin

In Wilkinson v Kirkham & Ors [2026] EWHC 1006 (Ch), Master Clark in the Business and Property Courts was asked to construe a residuary gift in a will that referred, in the singular, to "the daughter of Lily Mason" — when Lily Mason in fact had two daughters.

The deceased, John Whewell, died in December 2020 leaving a will dated 2007. His residuary estate — net residue of approximately £281,000 — was left to his cousin Lily Mason absolutely, with a substitutionary gift to take effect should Lily predecease him. She did, in 2018. The substitutionary clause directed the trustee to pay the residue to "the daughter of Lily Mason for her own use and benefit absolutely". Lily had two daughters, Jacqueline Kirkham and Gillian Bond, as well as a son, Mark Mason, who had since died. The question before the court was whether the gift should go to one daughter, both daughters equally, or fail entirely for uncertainty and pass on intestacy.

The executor, neutral as to outcome, advanced the arguments available to those entitled on intestacy. The daughters, represented jointly, took common ground and agreed that if only one were found entitled, they would share voluntarily. The remaining defendants did not participate substantively.

Master Clark identified the applicable legal framework as the general principles of will construction set out by Lord Neuberger in Marley v Rawlings [2015] AC 129, supplemented by the "armchair principle" and, where ambiguity was established, by section 21 of the Administration of Justice Act 1982, permitting extrinsic evidence — including evidence of the testator's intention — to be admitted. Both parties accepted that the expression "the daughter" was ambiguous on its face, making such evidence admissible.

The court also considered the rule in Garvey v Hibbert (1812), which provides that where a gift to children describes them as consisting of a specified number fewer than those in existence at the date of the will, the court will reject the numerical restriction on the presumption of mistake and hold all children entitled, unless particular individuals can be identified as intended. The executor argued that this rule did not extend to cases where the gift referred to a single child but two or more existed, relying on Stephenson v Bamber [1897] and Dowset v Sweet (1753). The daughters pointed to Harrison v Harrison (1829) and Hare v Cartridge (1842), where singular descriptions had been construed to include all members of the relevant class.

Master Clark declined to place determinative weight on the earlier authorities, noting that they were decided within a narrower interpretive framework than that now applicable following Marley. Applying a contextual and purposive approach, he identified three principal factors pointing towards an intention to benefit both daughters.

First, the deceased's primary relationship was with Lily rather than with either daughter individually, and there was no evidence that he was closer to one daughter than the other. The substitutionary gift was framed by reference to the daughters' relationship with Lily, not with him. Second, the deceased knew both daughters well enough to name them, yet did not do so — in contrast to his gift to Rose Graham's daughters, who were named expressly. Third, had the deceased intended to benefit only one daughter by name, it was unlikely he would have overlooked that omission when reviewing the will before execution.

The court held that the use of "the" and "her" most likely reflected a slip in expression, whether on the part of the deceased or the will draftsman. The gift in clause 4 was not void for uncertainty. "The daughter of Lily Mason" was construed as referring to the daughters of Lily Mason, who take the residuary estate in equal shares.