Wilkinson v Kirkham demonstrated the court’s modern approach to the interpretation of ambiguous wording. John Lambe explores the court’s approach and explains the impact on practitioners.
The High Court’s recent decision in Wilkinson v Kirkham [2026] EWHC 1006 (Ch) provides a useful reminder of the court’s increasingly purposive approach to will construction, as well as the risks created by imprecise drafting.
The case concerned the will of John Whewell, who left his residuary estate to his cousin, Lily Mason. The will went on to provide that if she predeceased him, the residue should pass to “the daughter of Lily Mason.”
In fact, Lily had three children: two daughters, Jacqueline and Gillian, and a son, Mark. Lily herself had died before the testator, creating uncertainty as to how the gift should operate.
The executor sought the court’s direction on how the clause should be interpreted. The question was whether the gift was intended to benefit only one daughter, both daughters equally, all of Lily’s children, or whether it failed altogether due to uncertainty, potentially resulting in a partial intestacy.
The modern approach
The court ultimately concluded that the wording should be interpreted as referring to both daughters equally. In reaching this decision, the judgment highlights the modern judicial approach to will construction, which has moved away from strict literalism.
Master Clark relied heavily on the Supreme Court’s guidance in Marley v Rawlings, confirming that the court’s task is to identify the meaning of the words used by the testator in their proper context. This involves considering the natural meaning of the language alongside the overall purpose of the will, the surrounding circumstances known to the testator at the time, and the application of common sense.
The court also had regard to section 21 of the Administration of Justice Act 1982, which allows extrinsic evidence to be admitted where the wording of a will is ambiguous. In this case, the wider evidence proved influential. It showed that the deceased had a close relationship with Lily, but no stronger or more distinct relationship with one daughter over the other. Importantly, he knew both daughters well enough to refer to them by name if he had intended only one to benefit. This was underscored by the fact that he had specifically named other beneficiaries elsewhere in the will.
A simple slip
Against that background, the judge concluded that the use of the singular phrase “the daughter of Lily Mason” was most likely a simple slip in expression, rather than a deliberate intention to benefit only one child. Interpreting the clause as including both daughters was therefore consistent with the testator’s likely intentions when viewed objectively.
For private client practitioners, the decision carries several important practical lessons. It demonstrates how even minor drafting errors can give rise to significant uncertainty and potentially expensive litigation years after a will has been executed. In this instance, the omission of a single letter had the potential to alter the distribution of a residuary estate or even trigger partial intestacy.
The importance of thorough records
The case also emphasises the continuing importance of thorough attendance notes and file records. The solicitor’s notes and draft materials formed part of the evidential context considered by the court, reinforcing how valuable such documentation can be when disputes arise.
More broadly, the judgment illustrates the court’s willingness to adopt a commercially and factually sensible interpretation where possible, rather than allowing gifts to fail unnecessarily. It also serves as a reminder that construction and rectification are distinct remedies. Here, the issue could be resolved through interpretation alone, without the need for rectification under section 20 of the Administration of Justice Act 1982.
Ultimately, Wilkinson v Kirkham is a timely warning that careful and precise drafting remains the most effective safeguard against future disputes, particularly where substitutionary gifts and class beneficiaries are involved.
About the author
John Lambe qualified as a solicitor in 2000 after originally teaching law at A-level and degree level. He joined Forbes Solicitors in 2020 and now co-leads the firm’s Contentious Trusts and Probate team alongside Tom Howcroft. With more than 25 years’ litigation experience, including over a decade specialising in contentious trusts and probate, John advises on complex disputes including Inheritance Act claims, proprietary estoppel, validity challenges and estate disputes. He is recognised by The Legal 500 as a Recommended Lawyer and Next Generation Partner.
