10 December 2018 - Article
A consultation detailing proposed amendments to the Non-Contentious Probate Rules 1987 closes for comments on 29 August. The Non-Contentious Probate Rules govern applications for grants of representation where there is no dispute about the validity of a will or about who is entitled to the grant.
Two issues are of particular interest to charities:
- weakening of the personal application route, and
- removing the value from the Grant
The consultation is aimed at all those interested in the administration of estates and invites comments ‘in particular on the updated language and ease of use of the rules and also whether they are appropriate for a modern Probate Service and are “future-proof”, allowing for changes in practice and procedure and in technology without necessarily requiring further changes’.
There is a list of 22 specific questions on which comments are invited at the end of the paper making participation relatively straightforward.
One objective is for the rules and supporting guidance to be in clearer, more user-friendly language ‘not simply removing the Latin expressions, but amending or explaining terms that would not be clear to the ordinary user’.
- Caveat becomes objection
The word ‘caveat’ would be replaced by ‘objection’ and clearer guidance given on the circumstances when its use is appropriate. The applicant must provide an initial reason for objecting to the issue of a grant, from a list reflecting the defences to a probate action. Interestingly, it is proposed that the ‘objection’ last for twelve months rather than the caveat’s current six months.
- Removing the requirement of personal attendance
One of the changes highlighted above as having the potential to cause concern is the suggestion that, where applications are not being lodged by solicitors, personal attendance at a probate registry should no longer be mandatory.
‘The majority of the working group thought that, on balance, it was not necessary to require personal applicants to attend at a registry in person as a matter of routine in support of their application. An applicant should be able to communicate with the Probate Service by letter, telephone or electronically. The Probate Service would reserve the right to call a personal applicant to attend in person where appropriate.’
Traditionally, charities have viewed the formality involved in applications as likely to reduce the temptation (to which, regrettably, we know a small minority are prey) not to declare the full value of an estate. There are some proving executors who consider, or even believe, the testator appointing them has overlooked their needs and/or been over generous to charity.
Although the consultation recognises the need for revised processes to be robust to prevent fraudulent applications and states that reference to the Probate Service has established an informal fraud prevention group, there is no detail on implementation.
Thus, the working group proposes that applicants should now provide a witness statement verified by a statement of truth (as in civil litigation) rather than swear an oath as to the truth of the information provided.
‘This does not reduce the importance of statements being given truthfully, and rules provide for the possibility of contempt of court proceedings being brought against a person who makes a false statement in a document verified by a statement of truth.’
The consultation paper suggests it is this requirement which means ‘individuals have to travel to and attend a district Probate registry, a sub-registry or a probate office’. Question 8 in the consultation specifically asks ‘Do you have any comments on, or suggestions about the statement of truth for personal applicants?’
The consultation exercise does not consider whether assets should be listed in a way similar to the Scottish system so that banks, for instance, will only pay out if they see that the executor has made full disclosure.
- Value on the face of the grant
The question of whether the value of the estate should be on the face of the grant is posed. This is apparently to do with confidentiality; its inclusion has been described as a ‘burglar’s charter’ (although there is no reason why executors should wait for a grant before taking steps to secure any property and contents).
It is a figure that assists charities to assess their options when faced, for instance, with dilatory or uncooperative executors. Its removal would mean the loss of a valuable source of information and, we suggest, inevitably it will increase the risk of fraud.
- Securing accounts
Applications for ‘inventory and accounts’ are to be simplified, allowing for anyone interested in an estate to apply for an order by issuing a notice set out in a, presumably to be drafted, Practice Direction.
The Consultation Hub can be accessed here.
The Hub allows you to access the consultation and the proposed new rules. It does seem user-friendly in terms of inviting response. Charities may well benefit from drawing the working group’s attention to the difficulties faced in securing information, and the risks inherent in making the application process less formal and thus potentially easier for the small minority of applicants to fall into temptation. Specific examples will doubtless assist.