Re Herklots [1964] 1 WLR 583


  • This is a pre-TLATA case; under a trust of sale there was an implied requirement of consent; but under the TLATA consent must be provided for expressly


  • Testatrix leaves will stating that her property is to be held on trust for sale:
    • D (who was also one of the trustees) is entitled to a life estate of income of residue and the right to reside in house for life
    • Subject to D’s right, C had 1 / 3 of residue
  • By codicil, it was stipulated that C can request for house to be transferred to him to settle his 1/3 share of the residue income once D has died
  • D proposed to sell house without the consent of C, C sought injunction against D

Held (High Court)

  • Injunction granted
  • On the true construction of the will and codicil, the house was held on trust for sale, subject to the consent of C

Ungoed-Thomas J

  • On true construction of the codicil, the testatrix intended C to have to option of taking the house, thus the house was not settled land, allowing D to sell it would defeat her intention
  • Questions of the policy of the law or of any particular statute should not affect the construction of the will in ascertaining the intention of the testatrix
  • In this case it was argued that it is the policy of the law that property should not be taken out of commerce and stuck in trust for sale
Trusts of Land Cases
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