Wilkinson V Kirkham & Ors (2026)
Wilkinson V Kirkham & Ors (2026)
Background
In Wilkinson v Kirkham, the testator left his residuary estate to his cousin, Lily Mason, with a provision that if she predeceased him, the estate would pass to “the daughter of Lily Mason.” Lily died before the testator and had two daughters and a son, creating uncertainty as to who should inherit.
The Issues
The court was asked to determine the meaning of the phrase “the daughter of Lily Mason.” Specifically, whether it referred to:
- One daughter only;
- Both daughters equally;
- All of Lily’s children; or
- No one, causing the gift to fail and potentially resulting in partial intestacy.
Held
The High Court held that the gift should be interpreted as benefiting both daughters equally. Applying the modern approach to will construction, the court considered the wording of the will alongside the surrounding circumstances and the testator’s likely intentions. The judge concluded that the use of the singular term “daughter” was a drafting error rather than a deliberate choice to benefit only one child.
Comment
The decision highlights the courts’ willingness to adopt a practical and purposive approach when interpreting ambiguous wills. It also serves as a reminder that seemingly minor drafting errors can lead to significant uncertainty and litigation. Careful drafting and comprehensive file notes remain essential to avoid disputes and assist the court in determining a testator’s intentions where ambiguity arises.
See a copy of the judgment here:
