Government changes E&W probate procedure without consultation

Emily Deane TEP

This Blog was updated on 26/11/2018 – for latest developments, please see the update at the end of the article below.

The government has announced amendments to the procedure for applying for probate in England and Wales, with less than a month’s notice. The Statutory Instrument (The Non-Contentious Probate (Amendment) Rules 2018) will come into force on 27 November 2018.

The Rules were laid as a negative instrument, meaning they don’t need the approval of Parliament and have already been signed into law by the relevant Minister. The instrument can be annulled by Parliament before implementation, but this is rare.

In brief the amended rules:

  1. allow personal online applications for probate to be made by an unrepresented applicant;
  1. enable all applications for probate to be verified by a statement of truth (instead of an oath) and without the will having to be marked (by the applicant, solicitor or probate practitioner);
  1. extend time limits in the caveat process, which give the person registering the caveat notice of any application for probate;
  1. allow caveat applications and standing searches (which give notice of grants being issued) to be made electronically;
  1. extend the powers of district probate registrars equivalent to those of district judges; and
  1. make further provision for the issue of directions (instructions to the parties) in relation to hearings.

The Probate Service has accepted online applications from personal applicants (individuals not represented by probate specialists) since earlier this year, with a view to making the system simpler and ‘easier to understand’.

There are concerns that the introduction of the online service may discourage individuals from using a probate specialist where it may be advisable to do so, for example where the estate is taxable, has foreign or complex components, or may be disputed.

The announcement comes at the same time as the Ministry of Justice’s proposal to increase the probate application fee with a banded fee structure depending on the value of the estate.

STEP strongly opposed this new system when it was proposed in 2016, on the basis that it is disproportionate to the service provided by the probate court. It is effectively a new tax on bereaved families. The government intends to introduce this measure without any proper debate via Statutory Instrument (see STEP blog: The death tax returns).

STEP will continue to follow developments in this area.

UPDATE 26/11/2018

HMCTS has advised that they will shortly provide further information with regard to the template of the statement of truth, but at present it is their intention only to make small changes to the current oath format to ensure that it fits with the new procedure and to make sure that practitioners do not need to change the format completely. They will soon provide template wording that must replace the jurat at the foot of the oath, as well as wording to account for the removal of the need to sign the will.

HMTCS have also provided guidance on the changes to the way caveat applications can be submitted. This is as follows.

Please note the following changes to Rule 44 regarding caveats:

  • Rules 44(2) (b) and 44 (3) (a) and (b): Caveats can now be entered and extended via email as well as post. If the caveat is to be entered electronically, the caveat form should be emailed to the DPR solicitors enquiries address. The email attaching the caveat form should ask for the fee to be taken from your PBA account. The fee must be paid before the caveat is entered/extended and currently there is no provision to pay a fee electronically other than by use of a PBA account. The caveat should be in the prescribed form i.e. form 3 (precedent form number 41 in Tristram & Cootes Probate Practice, 31st Edition). Caveats received after 4pm will be entered the following day.
  • Rules 44(6),(10) and (12): The period for entering an appearance/summons for directions following a warning to a caveat is now 14 days (calendar days including weekends and Bank Holidays).
  • Rule 44(13): District Probate Registrars can now deal with all summons to discontinue caveats following an appearance – whether by consent or not. The summons should be sent to the registry where the grant application is pending and if there is no application pending to the registry where the caveat was entered.
  • Rule 44(14): District Probate Registrars can now deal with applications to enter a further caveat entered by or on behalf of any caveator whose caveat is either in force or has ceased to have effect under R44(7) or (12) and under R45(4) and R46(3). These applications should be sent to the registry where the caveat was entered.
  • R45(3) and R46(3): Registrars can now deal with applications under these rules.
  • R43: Standing Searches can now be entered and extended via email as well as post. If the Standing Search is to be entered electronically, form PA1s should be emailed to the DPR with confirmation that the fee is to be taken by PBA. The fee must be paid before the Standing Search is entered/extended and currently there is no provision to pay a fee electronically other than by use of a PBA account.

In addition, please note that caveats received after 4pm will be deemed as having been received on the following day.

Emily Deane TEP is STEP Technical Counsel

STEP England & Wales Biannual Statement – December 2015

Alex ElphinstonSince my last statement we have seen changes on the England and Wales Regional Committee with the retirement of Keith Dudley, George Lyall, Gary Killmister and Carol Cummins. I would like to acknowledge their collective contributions over the years – especially Keith and George who have been so integrally involved in the development of STEP from its origins less than 25 years ago.

As you may be aware, Peter McGeown, Denese Molyneux, Duncan Gardner, Deborah Jude and Amanda Simmonds were elected to either STEP’s worldwide Council or the England and Wales Regional Committee and so will formally be attending their first Committee meeting in January. I am also glad to report that Cheryl Farnham has been co-opted to the Committee. Cheryl has attended in her capacity as chair of the UK Practice Committee from which she will soon be standing down. Cheryl has made a great contribution to both Committees already and we look forward to her continued input.

We have come an enormously long way from our small beginnings in 1991 and the worldwide nature of the organisation is now an enormous strength. It is always tremendously heartening to hear from George Hodgson and Sean Smith in STEP’s policy team on how well-received are the representations made by STEP on fiscal and other issues. The international input and extent of STEP plays its part in this. Recently STEP has been very involved in addressing the potential implications of the proposed Common Reporting Standard with HMRC and other bodies. George Hodgson has visited a number of branches on this topic and members’ feedback has been invaluable.

In this regard I would again like to thank the unsung work of the Technical and Practice Committee members and those on the special interest group committees. Without their commitment and generosity in terms of time and expertise we would not be able to respond to the many consultations and proposals or make the representations that we do as a Society.

Volunteering was an issue that was mentioned at STEP’s Leaders’ Forum, held earlier this month in London and attended by representatives from all over the world. I am conscious how each branch relies heavily on the goodwill of, often, a small number of dedicated members. May I take this opportunity to thank you, and recognise your hard work. The local branch is a vital part of the Society providing regular opportunities for education and networking – making and maintaining friendships. If you are not already involved at some level, please do see if there are ways that you too can be involved: you will almost certainly gain more than you give.

The Leaders’ Forum picked up on the feedback you gave as to the priorities for your branch. There was a general recognition that we need to strengthen the brand and raise the profile of the Society. A variety of suggestions were made ranging from actions individual members can take through to branch and national level. The various ideas and suggestions from the Forum are being collated and will be discussed in part at the Branch Chairs’ Assembly in February.

I trust you all have a good break over the Christmas and New Year period, however long or short this may be. It seems to be the one time of year that our inboxes do not overflow in our absence. Having said that, I read today that, last year, 1,566 people filed their tax return on 25 December and over 17,000 on 24 December! I hope you have more pleasurable things to do!

Alex Elphinston TEP is Chair of STEP’s England and Wales Regional Committee

STEP England & Wales Biannual Statement – July 2015

aewpAnother six months have flown by during which time plenty has happened on the international and national stage including the election of the Conservative Party into government.

The first Tory Budget since 1996, announced on 8 July, was widely trailed in many respects. The UK Technical Committee has already been preparing for changes to the non-domicile rules and will no doubt be busy responding to these proposals and the various Consultations.

In February we had a very successful Branch Chairs’ Assembly at which STEP CEO David Harvey gave an overview of the major issues faced by STEP. He noted that there was much to be optimistic about although there are a number of challenges facing STEP and its members over the next few years. We are no doubt all aware of this in terms of regulatory requirements, which continue to increase.

Another challenge is ensuring that we remain relevant to our members in terms of the resources, training, networking and brand. We are conscious that different branches have different pressures for a variety of reasons and want to ensure that we provide as much assistance as we can to help them thrive. STEP’s Worldwide Chair Ed Buckland attended the Branch Chairs’ Assembly and advised that the key question to ask was ‘what can STEP do for me?’.   Please do therefore feed back to me or staff at STEP on ideas you may have for supporting and strengthening your branch or STEP generally.

The first months of STEP’s new brand was raised at the Branch Chairs Assembly following its launch earlier this year.  The new brand clearly sets out the over-arching nature of members’ work in the new strapline ‘Advising Families Across Generations’. This has been well received and the strapline reflects a core aim of members.

We were also delighted to have Professor Elizabeth Cooke to talk about the upcoming Law Commission Wills Review.  This led to lively discussion on issues such as mutual wills, joint wills, the test for capacity, rectification and formalities for making a will.  It was therefore disappointing  later to learn that the Government has asked the Commission to put this project on the backburner while they review the law relating to the solemnisation of marriage. Hopefully we will see this issue back at the forefront sometime in the near future.

Yet again the Spring Tax, Trusts and Estates Conferences have been very well attended and well received and we are extremely grateful to all our speakers for giving of their time and expertise.  It is clear that one of the particular benefits that members most appreciate is the technical expertise that STEP provides in one form or another, including conferences, webinars, technical notes and courses. I am extremely grateful to everyone who is involved with these areas and with the representations made to government and international organisations. We have excellent Technical, Practice and Public Policy Committees, the members of which work very hard to support us all.

You will also be aware that there have been various changes to the education framework designed to give greater clarity, which have been well received. More recently Director of Professional Development Nigel Race and his team have been implementing the pilot of the new Employer Training Scheme (ETS).  A number of organisations have already signed up to
take part in the ETS and more potential partner organisations have been identified. It has been encouraging to see a number of accountancy firms engaged with this as well as lawyers and financial services.  Our thanks go to Nigel and his team for their hard work in this and seeking to engage with new members who will become part of the lifeblood of STEP.

We will shortly have the tenth annual STEP Private Client Awards, which
is a great occasion and enables us to celebrate the excellence of our peers around the world. This year again there are a number of practitioners from England and Wales vying to take home a coveted PCA. I wish them all the very best of luck.

On 9 December there is to be a Leaders’ Forum in London looking at the future member offer in a time of disruptive change. This will mean a strong emphasis on professional development and on the courses and related services that STEP should produce to support member careers over the coming years. STEP can only thrive and survive if the Society stays ahead of change to remain highly relevant to members and their careers and clients. This imperative is central to the STEP 2021 Business Plan. The Leaders’ Forum will help us achieve clarity about some of the bricks and building blocks of the professional development and related service offers for the next few years.

I would like to thank all of those at the STEP Office who not only support the England and Wales Regional Committee directly but who work hard in making sure that STEP remains relevant to its members and keeps up-to-date in an ever-changing world.

Elections for STEP Council and the England and Wales Regional committee open shortly so do consider getting involved. None of us have a monopoly on ideas, enthusiasm or youth!

Before I wish the summer away I trust you all get some form of break that will refresh and reenergise you.

Alex Elphinston TEP is Chair of STEP’s England and Wales Regional Committee