Probate

Non-contentious probate and online claims mandate:
STEP comments on MoJ consultation

The Ministry of Justice recently launched a consultation, which set out proposals for mandating professional user applications for grants of probate and letters of administration.

About the author: Emily Deane TEP is Technical Counsel at STEP. She has practised as a private client and trust solicitor in the UK, Bermuda and the Cayman Islands specialising in all aspects of the private client industry including wills, property, tax planning, estate administration, onshore and o›shore trusts and litigation. She joined STEP in 2016 as Technical Counsel in the policy team informing public policy in relation to trust and estate related issues.*​The proposals aim to change the non-contentious probate rules to make it mandatory for professional users (solicitors and other probate practitioners) to use the online process developed by HM Courts and Tribunals Service (HMCTS) in England and Wales. The online service has been available for personal applications since 2016 and was extended to practitioners following changes to the noncontentious probate rules in November 2017. It was further extended to all practitioners in October 2019, which was generally recognised as a progressive development, although some professional users have encountered difficulties and inadequacies with the system.

STEP observations

STEP welcomes the use of the online system in relation to the standard, day-to-day and noncomplex probate applications, and the general perception is that the online system can work well for those applications. The online transition is, ultimately, to enhance efficiency and to create a more effective system, which is supported by our members, who regularly use the service and would like to see improvements. We do, however, feel that the online system cannot yet deal with more complex non-contentious applications, such as grants ad colligenda bona, grants pending suit (pendente lite), and grants under section 113 or section 116 of the Senior Courts Act 1981. Currently, these applications are not listed in the proposed exceptions set out in the MoJ’s consultation document.

STEP proposes, in its consultation response, that simple probate applications should be handled by the online system, but more complex applications should be dealt with via the traditional paper form until enhancements have been made to the online system. The particular concern is that the existing system is unequipped to deal with the more complex applications and those which require more niche types of grants.

Members have identified a number of issues with the current Beta online probate system and have listed some fundamental issues which need to be addressed in the consultation response. Some of these issues include:

• The applicant’s firm details need to be entered each time, which is repetitive, and a time-saving measure is encouraged to allow these details to be saved so that they do not need to be typed in each time.
• There does not appear to be a simple way to list all of the applicant’s applications, with applicants having to search to find a current application. It would be useful to have a dashboard of all applications and their current status.
• It appears that once the application has started and cannot be completed, it is not possible to delete it. From a practical point, it is important to delete old incomplete applications which convolute the system, and it would be useful to have the ability to delete them.
• Members have found it difficult to go back in to amend a statement of truth, with it not being immediately obvious what to do. • • It has been reported that the system could be better signposted in regard to finding where the application is saved.
• Could HMCTS explore the possibility of allowing the sealed copy of the will to be ordered at the time of application, or as a separate application via the online system?
• There are occasions when members cannot log in at all and receive a ‘bad gateway’ webpage when they submit their account login details. It also appears that sometimes when members try to submit information, they receive error messages such as: ‘The event could not be created’ or ‘Sorry, there is a problem with the service, try again later’. Members rarely get through a whole application without some kind of error or a page ‘sticking’.
• STEP has been informed that practitioners are not allowed to submit IHT 205 forms online whereas personal applicants can if they have been given an HMRC reference number. STEP believes it would make sense for practitioners to be allowed to submit IHT 205 forms online as well.

We believe that addressing these concerns, in advance, will significantly improve members’ confidence in the system and help HMCTS to avoid unnecessary administrative difficulties and delays. STEP has offered to assist in drawing up the criteria for the types of estate that could use the online probate application process in its current form which would, ideally, tie in with further work on the PA1P forms and other attachments which could be improved.

We understand that the Law Society also has some concerns and has approved the principle of online applications; however, the society has noted that some of its members have reported some teething problems which cast doubt on the system’s ability to handle large volumes of applications. The Law Society’s consultation response requests that the system is fully tested and made fit for purpose before being widely rolled out and that online applications should not be made mandatory until all of the issues have been resolved.

​

STEP proposals

STEP proposes that the simple solution would be for HMCTS to make online applications the default position for simple applications and to continue with the traditional paper method for the more complex grants. The online system needs to be comprehensively updated to facilitate these grants, and it will save time and delay dealing with these issues in advance of a mass roll-out.

We have also suggested that the creation of either a dedicated professional helpline or administrative mailbox to support the system would be very valuable. In the meantime, we believe that the online system can work well for certain applications, and we look forward to assisting HMCTS with their developments to increase the efficiency of the online process for the probate industry.

* Please note that the views set out in this article reflect the views of the author and not the views of any individual STEP members or the organisation as a whole.