Applicability in England of Norwegian Deferred Probate Law

Norwegian law recognises a process known as deferred probate by which, in very broad terms, a surviving spouse may apply to the court for an order by which the surviving spouse is allowed to possess the whole of the joint estate of the deceased spouse and the surviving spouse subject to various obligations.

The law provides that when the surviving spouse dies the joint estate is divided in two and each half passes to the heirs of the deceased spouse and the surviving spouse respectively (who may be the same).

In 1950 a Welsh girl married a Norwegian.  They moved to Norway in 1952 and lived together until the husband died in 1979.  The wife (W) applied for deferred probate which was given the same day.

In about 1987 W moved permanently to Wales where she remained until her death.  She made her last will in 2012 and died in January 2016.  Apart from a small amount of land in Norway, her assets consisted of real property in England and Wales.

In her will W made various specific legacies and bequests including “absolutely to my son P … the balance of my bank accounts in Den Norske … and all my shares in Den Norske …”

In 2014 she transferred the whole of the balances from the Den Norske accounts in Norway to accounts in her own name in Lloyds Bank in the United Kingdom.

So it was that the matter came before the Chancery Division of the High Court for the determination of two preliminary issues following a strike out application: Per Bendik Rokkan v (1) Siriol Knersti Rokkan (2) Llywela Vernon Harris (as personal representatives of the estate of Elizabeth Gwenllian Clough Rokkan Deceased) [2021] EWHC 481 (Ch) Miles J.

First Preliminary Issue

Whether the Defendants are subject to any obligation, enforceable in England and Wales, to distribute the estate of W pursuant to the principles of Norwegian law of deferred probate.

Such issue includes (i) whether the grant of deferred probate of the deceased’s estate gave rise to an obligation pursuant to Norwegian Law enforceable against the estate of the Deceased at  her death (“the Norwegian Law Issue”); (ii) whether such obligation is enforceable by the Courts of England and Wales against the Defendants.

The legal relations of the parties where deferred probate was granted under the Act did not fall under the definition of a trust within the Hague Convention or more generally.

The obligations W was under concerning the joint estate arose exclusively under the Inheritance Act. That was sufficient to dispose of the first preliminary point.

The question of how the joint estate was to devolve on the death of W was a question of succession in W’s estate.  It fell to be determined (save as to immovables) by the law of her domicile on death.

The Norwegian Inheritance Act had no application under English private international law because W was not domiciled in Norway when she died.

That view accorded with the holistic and teleological approach commended by Mance LJ in Raffeisen[1]: the applicable law of succession was the one to decide the devolution of W’s estate.

Second Preliminary Issue

Whether, on the assumption that the Deceased lacked capacity to manage her property and affairs at the relevant time, the transfers from the Den Norske Bank in Bergen to the Lloyds Bank in England caused the specific legacy … to fail.

The pleadings did not identify any property said to represent the subject matter of the bequest, but sought an order that a sum equivalent to the then value of the Norwegian accounts be paid to P.

The arguments referred to the concept of ademption which simply meant the loss or withdrawal of a specific gift when, at the date of the testator’s death, the subject of it had ceased to be within the testator’s estate or its nature had fundamentally changed.

The starting point was section 24 of the Wills Act 1837 and, applying that rule, the property referred to in the relevant clause of the will did not exist.  It followed, that unless some special exception applied, the gift must fail.

There was no support in the cases for the broad proposition that a change in the character of the testator’s property made without the knowledge of the testator (through incapacity) did not adeem a specific gift of the original property.  It was widely accepted that ademption was not based on intention.

The relevant clause referred to Norwegian deposits.  W did not hold any such deposits when she died.  There was no legal basis for treating that clause as applying to anything else.

Both preliminary points were therefore decided in favour of the defendants.

[1] Raffeisen Zentralbank Osterreich AG v Five Star Trading LLC [2001] EWCA Civ 68