Why you won’t be able to swear in front of a solicitor for too much longer

The Government has recently announced changes to the procedure for applying for a grant of probate in England and Wales. The Non-Contentious Probate (Amendment) Rules 2018 (‘the New Rules’) form part of the Government’s continuing project to modernise the probate process.

In brief, the New Rules:

1. allow online applications from personal applicants (people not represented by a solicitor) where there is an original will and up to four proving executors;
2. 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 or solicitor);
3. extend time limits in the caveat process, which give the person registering the caveat notice of any application for probate;
4. allow caveat applications and standing searches (which give notice of grants being issued) to be made electronically; and
5. extend the powers of district probate registrars to be equivalent to those of district judges.

Whilst this is a welcome step in modernising both the Courts and the probate process, a number of concerns have been raised by professionals and professional bodies.

There is a real concern that the new process may discourage individuals from using a professional when it would be prudent to do so. For example, when an estate is liable for inheritance tax, has farmland, a business, has other complex elements or is disputed. There is a risk that applications submitted without the assistance of a professional may inadvertently undervalue assets or not declare them at all. A bigger risk is that of a lay executor not claiming an inheritance tax exemption or relief because they were not aware of it which financially penalises the estate (N.B. HMRC will not tell you that you have omitted to claim an inheritance tax exemption or relief). Whilst these are usually honest mistakes, they can create more expense (including potentially costly interest and penalties from HMRC where additional tax is payable), more stress for the executors and may involve having to instruct a professional to unpick and re-submit the application.

Replacing an oath with a statement of truth has also raised concerns in some quarters. Criminal sanctions apply to the making of a false statement under oath. These same sanctions do not apply to making a false statement of truth. This could increase the risk of fraud in this area. Whilst I do not personally believe that it will be a direct pre-cursor to such a rise, I do believe that with the introduction of online submissions and the requirement only to submit a statement of truth will begin to underestimate the importance of the act that executors are undertaking. This could lead to the types of mistakes I have referred to above.

A final concern for this writer is that the introduced changes were announced less than a month before the New Rules came into effect. The changes were implemented by Statutory Instrument, without the need for the approval of Parliament. Worryingly, the Government seem to favour this method of law making when considering new and potentially impactful changes in this area.

If you need assistance with the administration of an estate we will be able to help you. Please contact us if you would like to discuss your options further.