Rokkan v Rokkan & Anor

Obligations arising under a statutory deferred-probate scheme remain statutory obligations. They are not converted into contractual or trust obligations merely because the surviving spouse applied for the scheme or heirs consented to it. Where the issue concerns distribution of the surviving spouse’s estate on death, it is an issue of succession governed by the applicable succession rules.

Ademption ordinarily depends on whether the specifically gifted property remained in the testator’s estate at death, not on the testator’s intention, knowledge or capacity. The recognised exception concerns an unauthorised conversion by another person. The statutory protection for dispositions by a deputy under the Mental Capacity Act 2005 does not create a wider common-law exception.

Elizabeth Rokkan lived in Norway with her husband, Stein, and in 1979 obtained deferred probate under the Norwegian inheritance legislation. Their children consented through a guardian. Elizabeth later moved to Wales, became domiciled there, made a will, and died domiciled in England and Wales.

Her son claimed that the deferred-probate arrangement imposed contractual or trust obligations requiring the estate to be distributed in accordance with Norwegian obligatory-inheritance rules. He also claimed a specific legacy of Norwegian bank deposits, despite their having been transferred to a United Kingdom account after Elizabeth had allegedly lost capacity.

The court determined whether the first claim involved enforceable personal obligations or succession, and whether the transfers caused the specific legacy to adeem.

1. First preliminary issue. The claim based on contract failed. The Norwegian Act exhaustively prescribed the rights, duties and remedies arising from deferred probate. The surviving spouse could not select those obligations, and the heirs’ consent was not necessary in every case. Characterising the statutory obligations as contractual was unnecessary and artificial.
2. The trust claim also failed. The arrangement did not satisfy the definition of a trust in Arts 2 and 3 of the Hague Convention. There was no settlor who had placed assets under a trustee’s control, no separate trust fund, and no trust-based accountability. The assets formed one commingled estate subject to a comprehensive statutory code. The absence of a trust institution in Norwegian law reinforced that conclusion.
3. The proper characterisation was succession. The relevant issue was how Elizabeth’s estate devolved on her death, rather than performance of a personal obligation. Accordingly, the distribution of her estate was governed, save as to immovables, by the law of her domicile at death. Since she was domiciled in England and Wales, the Norwegian Inheritance Act did not govern the devolution of her estate under English private international law.
4. Second preliminary issue. A will speaks from the date of death under section 24 of the Wills Act 1837. A specific gift therefore fails where the specifically described property is no longer in the testator’s estate or has fundamentally changed in nature, unless an established exception applies.
5. Ademption does not depend on intention or knowledge. Lack of testamentary capacity does not prevent a transfer from operating as the testator’s act unless and until it is set aside. Jenkins v Jones concerned an unauthorised conversion by others and did not establish a general incapacity exception. The statutory rule in Sch 2, para 8 of the Mental Capacity Act 2005 is confined to dispositions by deputies and cannot be extended by analogy.
6. The transfers meant that Elizabeth held none of the Norwegian deposits at death. Clause 5 therefore had no subject matter on which to operate. Both preliminary issues were decided in favour of the defendants.

First instance decision on two preliminary issues ordered by Deputy Master Collaco Moraes on 2 September 2020.