A recent High Court decision in Wilkinson v Kirkham highlights the courts’ modern approach to interpreting ambiguous wording in wills and the importance of precise drafting.
The case concerned a will that left a residuary estate to the testator’s cousin, Lily Mason, but provided that if she died before him, the estate would pass to “the daughter of Lily Mason.” The difficulty was that Lily had two daughters and a son, creating uncertainty as to who the testator intended to benefit.
Rather than adopting a strict literal interpretation, the court considered the wording in its wider context. Relying on principles established in Marley v Rawlings, the court examined the language of the will, the surrounding circumstances and the testator’s likely intentions. Evidence showed that the testator knew both daughters well and had no reason to favour one over the other.
The court concluded that the reference to “the daughter of Lily Mason” was most likely a drafting error and should be interpreted as referring to both daughters equally.
The decision serves as an important reminder for private client practitioners. Even a minor drafting mistake can create significant uncertainty and lead to costly litigation years after a will has been executed. It also highlights the value of comprehensive attendance notes and file records, which can prove invaluable when the court is asked to determine a testator’s intentions.
Ultimately, Wilkinson v Kirkham demonstrates the courts’ willingness to adopt a practical and purposive interpretation where possible. However, it also reinforces a simple message: careful drafting remains the best protection against future disputes.
See full judgment here:
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