In depth: Probate modernisation can't happen until 37-year-old rules are updated

The House of Commons justice select committee this week heard evidence on possible solutions to an issue surfacing as a national crisis: delays in the granting of probate.

Progress is finally being made to bring down the backlog. However, 2023 saw the second-highest number of probate applications (302,363). With half of deaths requiring a probate application and 700,000 deaths a year forecast by 2030, the Probate Registry could be dealing with 350,000 applications a year, a ‘significant uplift from where we are in the struggle we’ve already heard about the backlog’, committee member Edward Timpson MP noted.

Are Probate Registry and HM Courts & Tribunals Service prepared for the challenges ahead?

Solicitor Ian Bond, former chair of the Law Society’s wills and equity committee, suggested not. Modernisation efforts have focused on digitisation, but the 1987 Non-Contentious Probate Rules must be updated, he said.

The committee heard that a working party was set up in 2009 to update the rules. A draft, designed to get rid of Latin terms and address other issues, was produced in 2013. Despite a consultation, nothing happened.

HMCTS’s 2016 reform programme did not build on that work. ‘It just said we’ll digitise the old 1987 rules,’ Bond said.

‘We are then trying to say to them, 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 of 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.’

Bond noted that the Law Commission is currently looking at wills reform.

‘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 at the moment 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 raised by the committee was minimum service level standards for the Probate Registry, something the Law Society supports. ‘If a client comes to us, asks us to do something and we don’t do it, there are consequences,’ Bond pointed out, suggesting practitioners could get a partial fee remission if, for instance, probate is not granted within a certain time. If a practitioner submitted a poor application that was rejected, the practitioner would have to pay half the fee again.

'Surgeries will work. It was a trial basis and the feedback is ‘Yes that’s brilliant, do more'

Ian Bond, former chair of the Law Society’s wills and equity committee

Sophie Wales, regulatory policy director at the Institute of Chartered Accountants in England and Wales, suggested a holistic approach to manage expectations.

Work out realistic processing times and publish them so people know what to expect. Probate Registry should be set a maximum number of days to respond to queries. ‘Practitioners I’ve spoken to have said, “It could be any number actually”, as long as it is a number they know that they will get a response and it’s not “how long is a piece of string”,’ Wales said.

Once an application is being processed, practitioners should be able to speak to the person dealing with the case. Practitioners should be able to talk to someone in the first 16 weeks of an application being submitted. ‘Four months is a really long time for you to have to say to a grieving family member “I don’t know, not a clue, can’t help you”,’ said Wales.

The committee heard that HMCTS has been trialling probate surgeries. Practitioners with ‘stopped’ cases that have been with Probate Registry for longer than 16 weeks can request a 20-minute appointment with a registrar-experienced probate manager.

Bond visited Newcastle Probate Registry last week, which held surgeries. There were 90 appointments. ‘When those appointments were then created, they found they could actually issue 35 of the grants before the appointments took place and be able to reopen those and bring other practitioners in.

‘There was an allotted time to speak to a practitioner about a case. Because there is an appointment, the registrar looked at the application and [said] “actually I’ve got everything I need here to issue the grant”… Those surgeries will work. It was a trial basis and the feedback is “Yes that’s brilliant, do more”.’

Perhaps HMCTS could conduct more surgeries while we await the Law Commission’s draft bill.

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