The government has been accused of causing yet more confusion, this time relating to the new Probate Law. The Non-Contentious Probate (Amendment) Rules 2018 came into effect on the 27th November 2018.  Similar to the chaos and poor communication surrounding Brexit, the handling of this has been much the same.

The proposal was first made on 1st November 2018, laid before parliament and come into force within the space of a month, being officially legal on Tuesday 27th November 2018. Yet despite this extremely tight schedule, the government has failed to keep the industry abreast of these amendments, there was no consultation and as the rule changes were laid as a “negative instrument” they didn’t need the approval of Parliament. The Parliament new rule amendments will:

  • Enhance the powers of District Probate Registers equivalent to those of a district Judge
  • Make additional provision for direction hearings to be heard
  • Extend time periods for Caveat, giving the original applicant more time to respond.
  • Allow Caveats to be applied for electronically (online)
  • Allow Standing searched to be lodged electronically
  • Allow personal applications for probate to be made by an unrepresented applicant.
  • No longer require the signature of all executors on the original will
  • Allow all applicants for probate to be verified by a statement of truth instead of by an oath

The final amendment in our list is perhaps the most controversial. Under the terms of the new amendments, the requirement to swear an oath in the presence of an independent solicitor, will no longer be necessary. Instead, clients will simply be able to sign a statement of truth.

Historically, the probate industry would send an oath to be sworn with the original Will. A person can then decide whether to swear the oath at a local probate office, in the presence of a commissioner for oaths (normally a local solicitor). The oath and the documents referred to in it, all then need to be sent to the probate office. The oath confirms that a person is appointed by the will and subsequently swears to ensure an estate will be distributed in accordance to the law and terms upon which the will was made.

Under the new amendments, there is now the scope for applications to be made online for probate, without the requirement of an oath, but instead being able to be verified by a statement of truth. Subsequently, the passing  of these amendments, diminishes the need for representation in this application process by a probate specialist. The government are hoping that by making this process available online, (similar to the current situation with personal applications), the application process will become more convenient and quicker for the public.

These changes come at the same time that the Government announced changes to probate fees. The changes will mean that some estates will pay application fees of up to £6,000 and those with estates under £50,000 will pay nothing.

However, despite the good intentions to simplify this process, there is widespread concern that the use of this online system could ultimately result in an increased number of people seeking to complete the probate process themselves,  without any specialist support. This could lead to a rise in problems, not to mention contentious issues surrounding probate cases.

Problems have already risen with majority of professionals only becoming aware of the changes thanks to a bulletin issued by some district probate offices last week announcing:

“With effect from the 27th November, HMCTS Probate will be changing the way that legal practitioners can lodge applications for Probate. By way of a statutory instrument, practitioners will no longer be required to submit an oath in support of their application but instead will be required to submit a statement of truth signed by the person(s) applying for the grant. It will also no longer be necessary to ensure that all applicants sign the original will.

However this week, the day before the amendment came into action, the same district registry’s announced

“Further to the announcement last week to confirm HMCTS will continue to accept sworn oaths in applications for the foreseeable future. When the decision is taken to stop this, we will give due notice of this change. HMCTS are currently developing the changes that you will need to adopt to make current oaths fit as statements of truth and we will contact you again with that guidance”

So who is aware of this new ‘law’ that is already in place and been made ‘official’, as the lack of media coverage and information is yet to be seen.