Peter Wilkinson v Jacqueline Ann Kirkham & Ors

This is my judgment on a Part 8 claim seeking determination of an issue of construction of a will.

The claimant, Peter Wilkinson (“the executor”), is the sole executor of the estate of the John Whewell (“the deceased”),who died on 22 December 2020, leaving a will dated 17 August 2007 (“the will”).

The first and second defendants, Jacqueline Kirkham and Gillian Bond, are the daughters of the deceased’s cousin, Lily Mason (“Lily”). I refer to them, without intending any disrespect, as “Jacqueline” and “Gillian”, and collectively as “the daughters”. Lily sadly died before the deceased, in 2018. She had a son, Mark Mason, who also sadly died on 8 October 2023. His estate is the third defendant.

On 28 July 2025, Master Bowles ordered that

The third, fourth and fifth defendants have acknowledged service stating that they do not intend to defend the claim.

The will leaves a number of pecuniary legacies totalling £77,000, including a legacy of £40,000 to Ms Rose Graham, with a gift over to her two (named) daughters.

The clause in respect of which the issue of construction arises is clause 4, which gives the residuary estate:

Since, as I have said, Mrs Mason had two daughters, not one, this clause gives rise to the issue of construction.

The executor is not a beneficiary of the will, and is neutral as to the construction of the relevant clause. In his claim form dated 20 January 2025, he seeks the court’s determination as whether on the true construction of clause 4, the expression "the daughter of Lily Mason”

The daughters were represented by the same solicitors and counsel and made common ground. They have agreed that if the Court finds that only one is entitled to the residuary estate, they will share it between themselves.

Since the daughters’ position is unopposed by the other defendants, the executor advanced the arguments that could be deployed in favour of the intestacy beneficiaries.

As at 15 August 2022 (the date of the most recent estate accounts), the gross estate was worth £369,873.59 and that the net residue held by the estate’s solicitors was £281,145.39.

The evidence comprised the following witness statements:

None of the witnesses were cross-examined.

The general principles of interpretation of wills are found in Marley v Rawlings [2015] AC 129 at [19] - [22]. At [19] Lord Neuberger said:

These principles subsume what is known as “the Armchair Principle” governing the interpretation of wills, explained in Boyes v Cook (1880) 14 Ch. D. 54 at 56 by James LJ:

In addition, the Marley principles are modified in the case of wills by section 21 of the Administration of Justice Act 1982 (“the 1982 Act”), which allows evidence of the testator’s subjective intention in certain limited circumstances. It provides:

As is explained in Theobald on Wills (19th edn) at 13-007, extrinsic evidence admissible under s.21 of the Administration of Justice Act 1982 in the three situations identified in the section is admitted “to assist in … interpretation” of the will:

The authorities which pre-date the 1982 Act and Marley establish a rule referred as the rule in Garvey v Hibbert (1812) 19 Ves 125 (“the Rule”). The Rule is set out in Hawkins on the Construction of Wills 5th edn at 10-01:

and in Jarman on Wills 8th edn at page 1702:

The Rule applies where the actual number of children is both more than the number stated in the will and where it is less: Re Sharp [1908] 2 Ch 190 CA.

The basis of the Rule is the presumed intention of the testator, as is explained in Jarman at page 1704:

The above legal principles were common ground. The parties differed however as to whether the Rule extended to cases where a gift was to a single child, but there were 2 or more children.

The executor submitted that such a gift was void for uncertainty unless the admissible evidence (including evidence which is now admissible under the 1982 Act) showed which child the testator intended to benefit. His counsel relied upon the following authorities: Dowset v Sweet (1753) 27 ER 117; Asten v Asten [1894] 3 Ch 260; Stephenson v Bamber [1897] 1 Ch 75.

In Dowset v Sweet (1753) 27 ER 117 the testator left a gift to the son and daughter of A. A had four sons and a daughter. It was held that none of the sons could take because of the uncertainty in the description, and whole gift went to the daughter.

Dowset predates Garvey v Hibbert. Following that decision, the Rule was applied in cases where the testator had described the intended beneficiary in the singular, and in fact there were multiple members of the class: Harrison v Harrison (1829) 1 Russell & Mylne 71, (1829) Tamlyn 273, at 278; Hare v Cartridge (1842) 13 Simons 165.

In Harrison, the testator bequeathed “to the two sons and the daughter of Thomas Lovell £50 each”. At the time the will was made, and when the testator died, Thomas Lovell had 5 children: one son and 4 daughters. It was held that each of the 5 children was entitled to a legacy of £50. Neither report of the case records any detailed reasoning.

In Hare v Cartridge, the testator bequeathed part of his residue to his first cousins, the children of his father’s brother of the name of Cartridge. In fact, the testator’s father had 2 brothers called Cartridge, both of whom had children. It was held that the bequest was not void for uncertainty; and that the children of both brothers were entitled to share in the residue. The Vice Chancellor said:

Asten v Asten was a decision where there was held to be uncertainty in the subject matter of gifts. The testator owned 4 freehold houses in Sudely Place, Colchester. His will made 4 gifts to each of his 4 sons of properties each described as “All that newly built house, being No. , Sudeley Place, Cotsfield Road, … in Colchester”. Since the property to go to each son could not be identified from the description in the will or from extrinsic evidence, it was held that the gift failed for uncertainty.

In Stephenson v Bamber the testator left the residue of his estate to

The testator’s aunt had 3 sons named Bamber, all of whom had died by the time the will was made and each leaving children. The testator knew this.

At first instance, the judge construed “named Bamber” as referring to the whole phrase “the children of the deceased son”, and concluded that the testator intended every child named Bamber (i.e. excluding married daughters) of a deceased son of his aunt to benefit.

In the Court of Appeal, Lindley LJ expressed the Rule as:

However, the Court held that this principle did not apply in the case before it. It distinguished Hare v Cartridge, whilst acknowledging that it had never been overruled. It held that, in the absence of extrinsic evidence, it could not construe “son” as “sons”. It was, therefore, it held, bound to say that the object of the gift was uncertain, and therefore void.

In considering the above authorities, it is in my judgment necessary to have in mind that they were all decided within a narrower framework than now applicable in the construction of wills, and to bear in mind the cautionary words in Theobald at 14-001 (footnotes omitted):

The deceased was born on 8 July 1929, so was therefore 78 when he made the will. He never married and had no children.

Jacqueline was born on 18 August 1957, and Gillian was born on 25 February 1960. The daughters met the deceased occasionally when they were children, at his mother’s house, where they visited with their mother.

In about 1982 or 1983, following the death of his younger sister, Jean, the deceased moved to Whalley in Lancashire. He maintained a very close relationship with Lily and they ensured that they saw each other as often as they could. They would exchange birthday and Christmas presents. The deceased was a keen walker and went on many walking holidays. He would always phone Lily to tell when he was going away. Lily was named as his next of kin when he was admitted to hospital. Overall, there is clear evidence that the deceased was very close to Lily.

As to the daughters, he knew them reasonably well. He was always invited to family events or family celebrations, and was a guest at Gillian’s wedding. There is no evidence that he knew one daughter better than the other or was closer to one of them.

In 1983, the deceased made a will by which he left Lily £1,000, and other relations similar pecuniary amounts, with his residuary estate divided between 2 charities.

By the time of the will (2007), 3 of the cousins named as legatees in the earlier will had died, but two remained alive. They are not legatees in the will.

The will was prepared by Anthony Wilde, who was a private client clerk at Woodcocks Haworth Nuttall, solicitors (“WHN”). That firm has provided an apparently incomplete copy of their will file; and information which seems to have been provided by Mr Wilde. Regrettably, WHN have not provided a witness statement from Mr Wilde, although this has been asked for.

The deceased provided a hand written note of his wishes to Mr Wilde. This included a gift of his residuary estate to Lily, with no substitutionary gift. There are then words which are crossed out "(or for her benefit and the rest of the living members of our family at her discretion)". The notes also included a gift of £30,000 to Rose Graham.

On 1 August 2007, the deceased met Mr Wilde and gave him the note of his wishes. Mr Wilde’s attendance note of that meeting (“the attendance note”) records:

The draft will prepared by Mr Wilde was not in evidence. However, after receiving it, the deceased wrote to Mr Wilde to increase the legacy to Rose Graham to £40,000; and if she predeceased him, to be “divided equally between her two daughters, namely Angela Brown and Natalie Robinson”. The final version of the will was then signed on 17 August 2007, but there is no attendance note of that occasion.

Self evidently, the deceased did not intend his residuary estate to go to the intestacy beneficiaries – that was why he made the will. That would however be the outcome if the object(s) of the gift in clause 4 of the will cannot be determined.

It was common ground that, in the factual circumstances of this case, the expression “the daughter” is ambiguous, and that extrinsic evidence of the Deceased’s intention is therefore admissible.

As to the evidence, this shows that the deceased was closer to Lily than to any other living member of his family. She was his named next-of-kin when he went into hospital; and he had benefitted her in an earlier will. The gift to her of his residuary estate reflected that closeness.

The evidence does not show that the Deceased had a close or particular relationship with any of Lily’s children as opposed to with Lily herself. There was evidence from Jacqueline that the deceased was “old school” and may have intended to refer to her as the eldest daughter who was Lily’s next-of-kin (for medical purposes), and held a power of attorney. On the other hand, the deceased attended Gillian’s but not Jacqueline’s wedding.

Both sides agreed and I find that “daughter” is not apt to refer to a male child, so that an intention to benefit Mark cannot be inferred. This is supported by the fact that “children” was crossed out in the attendance note; and by the executor’s evidence that, rightly or wrongly, the deceased did not have a favourable view of Mark.

The executor’s primary argument was that the ordinary and natural meaning of the words used in clause 4 indicated a gift to a single person: “daughter” and “her” are both singular expressions. His counsel submitted that, applying the relevant rules of construction and considering the admissible evidence:

As indicated above, I accept the daughters’ submission that only limited help can be derived from the numerous decisions on the interpretation of wills, many of which were decided in the 19th century (as are those cited in this case).

Applying the principles in Marley, the following factors show, in my judgment, that the most likely (on the balance of probabilities) intention held by the deceased was to benefit both daughters.

The first factor is his closeness to Lily, so that his primary relationship was with her, rather than with the daughters. Clause 4 itself shows that his primary intention was to benefit her. The substitutionary provisions applying if Lily predeceased him show that the person(s) he intended to benefit were to be benefitted primarily because of their relationship to Lily (rather than because of his relationship with them as individuals) . Equally, the fact that he was not closer to one daughter than another indicates that he did not intend to favour one over the other. This factor points towards the most likely intention to be attributed to the deceased being to benefit the class comprising the daughters of Lily.

The second factor is found in the will itself. In it, the deceased does not refer to “the daughter” by name. The evidence shows that he knew both daughters well enough to know their names. If he had intended to identify one daughter rather than another, he could have referred to her by name; and the fact that he did not, is also evidence that he intended to benefit the class of daughters rather than one particular individual daughter. This position is to be contrasted with his gift to Rose Graham’s daughters to whom he did refer to by name. Again, the inference to be drawn is that he intended to benefit the daughters as a class, rather than an individual daughter.

Thirdly, I consider the position when the deceased reviewed the will before signing it. If he had intended to benefit only one daughter, but forgotten to give Mr Wilde her name, he would have been likely to notice the omission from the will of her name. If, on the other hand, he had intended to benefit the daughters, the use of the singular pronouns in the will is less likely to have been noticed by him.

In my judgment therefore, the use of “the” and “her”, is most likely to reflect a mistake or “slip in expression”. This may have been by Mr Wilde or by the deceased himself when giving instructions. The fact that these words in their ordinary natural meaning are singular does not prevent the court from finding an intention to benefit both daughters, as occurred in Harrison v Harrison and Hare v Cartridge.

For the reasons above therefore, I reject the submission that the gift in clause 4 of the will is void for uncertainty; and hold that the expression “the daughter” refers to the daughters, who take under clause 4 of the will in equal shares.