Re Herklots [1964]

Re Herklots [1964] 1 WLR 583 is situated in the context of a pre-TLATA (Trusts of Land and Appointment of Trustees Act 1996) legal framework. Notably, this case involves the implication of a requirement of consent in a trust of sale, whereas, under the subsequent TLATA, consent must be expressly provided.

The facts of the case revolve around a testatrix who left a will specifying that her property was to be held on trust for sale. The disposition included a life estate for the defendant, who was also one of the trustees, entitling him to the income of the residue and the right to reside in the house for life. Additionally, the claimant was granted one-third of the residue, subject to the defendant's rights. A codicil further stipulated that the claimant could request the transfer of the house to settle his one-third share of the residue income after the defendant's death. The dispute arose when the defendant, without obtaining the consent of the claimant, proposed to sell the house. In response, the claimant sought an injunction against the defendant.

In the High Court's judgment, the injunction was granted. Ungoed-Thomas J, in delivering the decision, held that on the true construction of the will and codicil, the house was held on trust for sale, subject to the consent of the claimant.

Ungoed-Thomas J emphasised the importance of construing the will and codicil to ascertain the testatrix's intention. According to the judge, the testatrix intended for the claimant to have the option of taking the house, indicating that the property was not settled land. Allowing the defendant to sell the house without the claimant's consent would defeat the testatrix's intention.

The judge further clarified that questions of the policy of the law or any particular statute should not influence the construction of the will. Instead, the primary focus should be on discerning the testatrix's intention. Even if arguments were made about the policy that property should not be taken out of commerce and stuck in trust for sale, the judge maintained that such considerations should not alter the construction of the will in this case.

In summary, the court's decision in Re Herklots highlights the significance of interpreting the testatrix's intention in determining the nature of property rights under a trust, even in the face of arguments related to legal policy. The case underscores the importance of adhering to the specific terms and conditions outlined in the will and codicil.
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