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

MoJ in special measures on charges?

Businesman blows whistle and shows red card
STEP was one of the bodies most actively engaged in the furore that developed around the Ministry of Justice’s (MoJ) proposal to raise probate fees for some estates from £155/215 to as much as £20,000.

One of the things that enraged many STEP members was not just the scale of the increase, but the fact that overwhelming criticism in response to the consultation on the proposals had been entirely disregarded. Moreover, the mechanism by which the MoJ were looking to introduce the new fee – via a Statutory Instrument with minimal Parliamentary scrutiny – appeared to be a clear abuse of process; a view confirmed by a legal opinion commissioned by STEP.

In the end, the increase in probate fees appears to have been shelved, at least for the time being. It has recently emerged, however, that it is not just probate fees that have been getting the MoJ into a spot of hot water. Fees for Powers of Attorney were also raised to levels that more than covered costs, but the MoJ had again failed to follow the procedures needed in these circumstances. Fees for Powers of Attorney have since, with effect from 1 April 2017, been reduced, and the Office of the Public Guardian is looking at ways to refund those who have paid too much. (See Justice ministry to repay GBP89 million of powers of attorney overcharges.)

Even more intriguingly, the MoJ, in its Annual Report, has let slip that it is ‘undertaking a review of lessons learnt [from the Powers of Attorney fees issue] which has led to the creation of a new income strategy unit which will oversee the standards and controls set for all income streams.’

The Report goes on to say: ‘There have also been a number of improvements to the way in which we forecast and monitor fees to ensure compliance with requirements set by HM Treasury.’

Stripping through the civil service code, this sounds like there has been fairly sharp exchange of views between HM Treasury and the MoJ over fees that begin to look like taxes, with Treasury no doubt highlighting that there are supposed to be rules and procedures when it comes to this sort of thing.

The funding gap left by the failure to get the probate fee increase through before the election still needs to be addressed. How the MoJ will eventually fill that gap remains to be seen. It sounds, however, like we can at least expect the MoJ to pay a bit more attention to due process when this issue next comes up than it was minded to earlier this year.

George Hodgson is Chief Executive of STEP

Probate fees – will common sense prevail?

George HodgsonThe government’s threat to radically increase probate fees next month (Probate fee rise ‘a new tax on bereaved families’) may be receding, following a meeting of the House of Commons Joint Committee on Statutory Instruments on 29 March.

Using some very welcome common sense, the committee raises the issue (para 1.12) that it is a constitutional principle that there should be ‘no taxation without the consent of Parliament’. This is something I suspect 99% of people will agree with.

It finds that the proposal from the Ministry of Justice (MoJ) is clearly a tax, not a fee, in every normal definition of the term, and should therefore be subject to full parliamentary scrutiny, rather than brought in via the back door through a Statutory Instrument.

The committee also finds (para 1.13) that ‘charges’ of the magnitude proposed by the MoJ were probably never envisaged when the original legislation the government was attempting to use here was approved. In other words, using this process is an abuse.

We would hope that this will provide an opportunity for the government to re-think its approach, which was criticised by over 90% of those responding to the consultation, and submit re-worked proposals for proper scrutiny by Parliament.

• Joint Committee on Statutory Instruments: Non-Contentious Probate Fees Order 2017

 

George Hodgson is Chief Executive of STEP