Professional bodies urge caution on compulsory use of online probate system

Monday, 14 September 2020
Consultation has just closed on the Ministry of Justice's (MoJ’s) plans to compel professionals in England and Wales to submit their non-contentious probate applications through the new online service developed by HM Courts and Tribunal Service (HMCTS).
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The online service has been available for personal applications since late 2016, and was extended to professionals following changes to non-contentious probate rules in November 2017. It was made available to all practitioners in October 2019, and is generally recognised as a positive development, although some users have reported problems.

Both STEP and the Law Society of England and Wales have submitted responses supporting the principle of mandatory use, but urging the MoJ to take a cautious approach.

STEP welcomed mandatory use in the case of standard, day-to-day and non-complex probate applications, for which the online system can work well.

However, STEP’s particular concern is 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 s.113 or s.116 of the Senior Court Act 1981. It appears that these application are not listed in the proposed exceptions set out in the MoJ's consultation document.

STEP suggests that the simpler approach would be to make online applications the default position for simple applications and that HMCTS should continue with the traditional paper method for the more complex grants. The benefits associated with moving online for simpler estates will not be possible for more complex applications until the online system is comprehensively updated to facilitate them.

As laid out in STEP’s consultations response, the existing system is 'simply unequipped' to deal with a regime in which the more complex applications and those which require more niche types of grant must all be submitted online. 'The current online forms do not allow the entry of all of the required information for some types of application. Due to this flaw in the system, any online component of a more complex application will need to be accompanied by separate paper submissions providing the information that cannot currently be entered into the online system.'

STEP also notes reports from members that there are occasions where they cannot log in at all and receive a 'bad gateway' web page when they submit their account login details. Members rarely get through a whole application without some kind of error or a page 'sticking'.

The Law Society went further. Although, like STEP, it approved the principle of online applications, it noted that some of its members have reported some teething problems that cast doubt on the system's ability to handle large volumes of applications. It insisted that the system must be fully tested and made 'fit for purpose' before being widely rolled out, and online application should not be made mandatory until all issues have been resolved.

'HMCTS must state what alternative options will be available should the system experience difficulties, such as technology issues or if a practitioner can show that the online system cannot cope with a particular aspect of the application', said the Law Society.

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