Parliamentary committee hears probate recommendations

While steps are ongoing to reduce the backlog in probate cases, legal experts have told parliamentarians the process needs further updating if it is to function effectively in the long term.

Last month the House of Commons Justice Select Committee heard that, in 2023, there were 302,363 probate applications – the second-highest figure ever, with predictions suggesting annual figures could regularly reach 350,000 per year.

Giving evidence to the committee, solicitor Ian Bond, former chair of the Law Society’s wills and equity committee, said that the 1987 Non-Contentious Probate Rules needed to be modernised if the system was to cope with changing realities.

A working party, tasked with revising the rules, was established in 2009. The group produced a draft in 2013 that contained, for example, simplified language with fewer Latin terms. However, this did not feature in His Majesty’s Courts and Tribunals Service’s (MCTS) 2016 reforms, which focused instead on digitising the existing rules.

Mr Bond told committee members: “You cannot digitise the process when the black letter law says that a physical will has to arrive in the registry, that grant that has come from abroad that’s being asked to be resealed, has got to be a physical grant in the registrar’s hands.

“All of these things weren’t looked at. All this paperwork is required by the probate rules to be put in. Therefore, if you’re digitising something you have a paper handoff. It can’t ever be fully digitised with the rules as they stand.”

He added that the Law Commission is currently considering how the wills process could be reformed.

“They’re going to be talking about digital wills, video wills, wills made by a text message, wills made by email. The probate rules as [they] stand… will not cope with that, and we need to have a serious look at those rules before we do anything… Nothing written in 1987 prepared us for video wills, for email wills, for text messages, and all the things that the Law Commission are going to bring in for us.”

One solution discussed by the committee was minimum service level standards for the Probate Registry, with practitioners reimbursed if probate was not granted within a certain time.