Ambiguity in wills is one of the most common sources of probate disputes. A single misplaced word or an imprecise class description can determine who inherits a substantial estate. The High Court’s decision in Wilkinson (as executor of the estate of John Whewell, deceased) v Kirkham and others [2026] EWHC 1006 (Ch) is a striking example of how the courts resolve such uncertainty.
In this case, the court was asked to interpret a substitutionary gift of residue “to the daughter of Lily Mason”. The problem was simple but significant: Lily Mason had two daughters. The question was whether the testator intended to benefit one daughter, both daughters or whether the gift failed entirely for uncertainty.
Master Clark’s judgment provides a clear illustration of the modern, purposive approach to will construction and the court’s willingness to correct drafting slips where the underlying intention can be identified.
Background to the dispute
John Whewell died on 22 December 2020, leaving a will dated 17 August 2007. He had never married and had no children. His closest relative was his cousin, Lily Mason, with whom he had a particularly close relationship.
Under clause 4 of the will, John left his residuary estate to Lily absolutely. The clause then added a substitutionary gift if Lily predeceased him, directing that the residue should pass “to the daughter of Lily Mason”.
Lily did in fact predecease John, dying in 2018. She left behind two daughters, Jacqueline Kirkham and Gillian Bond, and a son who later died. The estate was worth over £281,000.
The executor therefore sought the court’s determination of who should inherit the residue.
The legal issue
The central question was whether the phrase “the daughter of Lily Mason” referred to:
- one daughter and if so, which one;
- both daughters in equal shares; or
- no one at all, because the gift was void for uncertainty.
The wording was undeniably awkward. The use of the singular “the daughter” and the pronoun “her” suggested a single beneficiary. Yet the factual context made that interpretation problematic.
The parties’ competing arguments
The daughters argued that the singular wording was a drafting slip. They relied on the principle from Garvey v Hibbert, which allows the court to disregard an incorrect number when describing a class of children. They said the court should treat “the daughter” as meaning “the daughters” and divide the residue equally.
The executor, representing the intestacy beneficiaries, took the opposite view. He argued that the natural meaning of “daughter” was singular and that the court could not identify which daughter the testator intended to benefit. On that basis, he said the gift must fail for uncertainty, relying on Stephenson v Bamber.
The court’s approach to interpretation
Master Clark began by confirming that the wording was ambiguous in the circumstances. This opened the door to extrinsic evidence under section 21 of the Administration of Justice Act 1982.
The court then examined the surrounding context, including the deceased’s relationships, the solicitor’s attendance notes and the structure of the will.
Three key factors persuaded the court that the testator intended to benefit both daughters.
- The testator’s relationship with Lily
John’s primary intention was clearly to benefit Lily. The substitutionary gift was designed to ensure that someone connected to her would inherit if she did not survive him.
There was no evidence that John was closer to one daughter more than the other. This made it unlikely that he intended to single out one daughter for special treatment. Instead, it pointed towards an intention to benefit the class of Lily’s daughters.
- The absence of names in the Will
John knew both daughters well enough to know their names. If he had intended to benefit one daughter specifically, he could easily have identified her by name.
This contrasted with another clause in the will where he left a gift to Rose Graham’s daughters and named them individually. The difference in drafting suggested that the omission of names in clause 4 was not deliberate.
- The likelihood of a drafting slip
The solicitor’s attendance note recorded the residue going to Lily “or to her children grandchildren daughter”. This muddled wording strongly suggested that the singular “daughter” in the final will was the product of a drafting error or a misunderstanding during instructions.
Master Clark concluded that the use of the singular was not intended to exclude one daughter. It was simply a slip in expression.
The court’s decision
The court held that the gift was not void for uncertainty. The phrase “the daughter of Lily Mason” should be construed as referring to both daughters.
Accordingly, Jacqueline Kirkham and Gillian Bond were entitled to inherit the residuary estate in equal shares.
Why this case matters
This decision reinforces the modern, purposive approach to will interpretation. Courts will look beyond literal wording where necessary to give effect to the testator’s likely intention.
It also highlights the importance of:
- clear drafting;
- accurate attendance notes; and
- understanding how courts treat ambiguous class descriptions.
For practitioners, the case is a reminder that even small drafting slips can lead to significant litigation. For beneficiaries, it offers reassurance that courts will not allow technical imperfections to defeat genuine testamentary intention.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, don’t hesitate to get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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