Government confirms professional probate applications in England and Wales to be moved online
The online probate application service was developed by HM Courts and Tribunals Service (HMCTS) and made available to all practitioners in October 2019. In August this year, the Ministry of Justice (MoJ) announced plans to make it mandatory for professional use; stating in a consultation document that the reform was necessary to speed up modernisation of the probate service and save GBP20 million over the next ten years by closing most of HMCTS' district probate registries.
Responses to the consultation suggested that the online process is widely supported in principle, but reservations were raised on making it mandatory for all professional applications at this stage, said the MoJ. Many respondents argued it was premature and should be implemented in phases. Only a minority of respondents were opposed in principle and wanted to revert to the old paper-based system, although the MoJ believes their objections largely come from reports of teething problems in the early stages of the online system that have since been rectified.
STEP's response to the consultation suggested that simple probate applications could be made mandatory, but a paper-based system retained for more complex, non-standard ones such as grants ad colligenda bona, grants pending suit and grants under s.113 or s.116 Senior Court Act 1981, which the current online cannot efficiently process. It has offered to help set the criteria for exceptions.
'We are pleased to note that HMCTS has decided to carve out a number of exceptions for the more specialised applications and that applications for grants of letters of administration can still be made via the online process or the traditional paper method', commented STEP Technical Counsel Emily Deane TEP. 'The online system needs to be comprehensively updated to facilitate the more complex applications. It will save time and delay to address these issues in advance of a mass roll out and, in the meantime, we believe that the online system can work well for certain applications', she added.
As a result of the consultation, yesterday (30 September) the government introduced to parliament an amendment to the Non-Contentious Probate Rules, setting out new rules to come into force on 2 November 2020. The lead-in period gives professionals a month to register for accounts with the online MyHMCTS platform, in order to apply for a grant online. MyHMCTS is used for a range of court jurisdictions, so some practitioners will already have registered an account for purposes other than probate.
In its policy document, the MoJ accepts that exceptions to the mandatory rule will be needed at first, although it has not yet finalised its list of exceptions. This will appear in a future schedule added to the statutory instrument, and will include grants of administration; applications to prove a copy of a will when the original has been lost and applications for rectification of a will. It also acknowledges that users' experience or perception of the service has not always been positive, and accepts that trust and confidence needs to be built for the system. However, its position is that a 'fully modernised' online service is inevitable, and HMCTS is developing the service further with the aim of making professional user applications almost wholly online.
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