Peter Wilkinson v Jacqueline Ann Kirkham & Ors

In construing a will, the court must identify the testator’s intention from the words used, the document as a whole, the relevant circumstances and common sense. The statutory admission of extrinsic evidence under section 21 of the Administration of Justice Act 1982 may assist where the language is ambiguous. A singular description does not necessarily confine a gift to one beneficiary. Where the evidence shows an intention to benefit a class, the court may treat singular wording as a mistake or slip in expression and construe the gift accordingly. Earlier authorities on misdescription of beneficiaries provide limited assistance because modern will construction is contextual and focused on the particular testator’s intention.

This was a Part 8 claim by the executor of John Whewell’s estate for construction of clause 4 of his will. The clause gave the residuary estate to his cousin Lily Mason, but provided that, if she predeceased him, the estate was to be paid to “the daughter of Lily Mason”. Lily had two daughters, Jacqueline Kirkham and Gillian Bond, and a son, Mark Mason.

The executor sought determination whether the clause benefited one daughter, both daughters, all Lily’s children, or failed for uncertainty so that the residue passed on partial intestacy. The central issue was whether the singular wording could, in light of the admissible evidence and the will’s context, be construed as referring to both daughters.

1. Construction of wills. The court applied the principles in Marley v Rawlings [2015] AC 129 at [19]–[22]. The task is to ascertain the testator’s intention from the natural and ordinary meaning of the words, the overall purpose and other provisions of the will, facts known or assumed when it was made, and common sense, while ordinarily excluding subjective evidence of intention.
2. Section 21 of the Administration of Justice Act 1982 modifies those principles for wills. Where the relevant language is meaningless or ambiguous on its face, or is shown by non-subjective evidence to be ambiguous in its circumstances, extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist interpretation.
3. The court treated the authorities on inaccurate enumeration and singular descriptions as providing limited assistance in the modern contextual approach. The Rule in Garvey v Hibbert (1812) 19 Ves 125, as illustrated by Harrison v Harrison (1829) 1 Russell & Mylne 71 and Hare v Cartridge (1842) 13 Simons 165, supported the conclusion that singular wording can be treated as an erroneous enumeration or slip where the intended class is otherwise ascertainable. Stephenson v Bamber [1897] 1 Ch 75 did not require a different result on the evidence.
4. The admissible evidence showed that the deceased’s primary relationship was with Lily, that he was not closer to one daughter than the other, and that he knew both daughters’ names but did not name either in clause 4. His separate gift to Rose Graham’s daughters, who were named, reinforced the inference that clause 4 referred to the daughters as a class. The use of singular pronouns was more likely a drafting or instructional slip than an intention to select one daughter.
5. The gift was therefore not void for uncertainty. “The daughter” referred to Jacqueline and Gillian, who took the residuary estate in equal shares. The court rejected the submission that the singular wording compelled a gift to one person.

First-instance Part 8 determination. No prior or appellate decision was stated in the judgment.