From paper to digital

The government’s drive to accelerate the modernisation of HM Courts and Tribunal Service (HMCTS) has taken a further step forward with the publication of draft proposals requiring practitioners to make probate applications online; and to remove the ability to make paper-based applications. 

But will the proposed mandatory use of the online service bring the speed and efficiency that practitioners are craving?

A consultation paper was published by the Ministry of Justice (MoJ) on 10 August (running until 10 September). The government’s desired outcome is to require all practitioners to use the online service when applying for non-contentious grants of probate or letters of administration in England and Wales. 

The probate service issues around 260,000 grants each year, of which 180,000 are made by solicitors or other probate practitioners. Until 2017, applications by practitioners could only be made using the traditional paper-based system. 

Reform

The online probate service forms part of a larger reform programme which was launched in 2016. A £1bn investment programme to modernise the courts and tribunals was kickstarted four years ago. The probate reform programme, according to the consultation paper, is expected to generate savings of £20m over a 10-year period. 

As part of that reform program, practitioners will already have experienced the closure of all of the sub probate registries; and the closure of the majority of district probate registries are to follow. To date, however, many practitioners have been frustrated at the increased delays in obtaining grants of probate, which have been exacerbated by the covid-19 pandemic. 

Many of us will be concerned that further reform will undoubtedly see a further reduction in the numbers of probate registry staff; and the ability to discuss individual cases offline will reduce still further. 

Often, practitioners are appointed by clients to deal with complex probate applications and so clients require expert assistance. Any online system would need to be able to cater for cases that do not necessarily fit the ‘one size fits all’ box. 

The online service for legal professionals was rolled out to be available to all practitioners following a beta phase, for which a small number of firms were invited to take part in a pilot scheme. It became available to all professional practitioners in October 2019. 

So far, the profession’s uptake and move to online applications has been slow. As at June 2020, official figures showed that only a fifth of applications from solicitors were made online. Clearly, the government is looking at converting those of us still preferring to use a paper-based system, and if we won’t do so voluntarily, then they are prepared to use strong-arm tactics. 

The online system

The MoJ consultation paper states: “Mandating the process will accelerate it and encourage users to adapt and take the necessary
steps for the transition while helping to achieve the savings which HM Courts & Tribunals Service needs to deliver in fulfilling the requirements of the investment in the HMCTS reform programme.”

It is keen to stress that not only will online applications save on cost and time, it will be a more efficient and reliable way to apply for probate. The consultation says it is “clear the process has to modernise” and online applications would speed up processing times. Other advantages, we are told, include a 24-hour system where applications can be tracked and monitored, as well as a reduced risk of errors on applications.

The MoJ refers to the significant development in enabling statements of truth to be submitted electronically, as an alternative to affidavits, as a positive example of how the online system can assist practitioners. Although this measure was originally designed to assist during the covid-19 pandemic following its introduction in April, it is clear consideration is being given to making this a permanent change by amending the non-contentious probate rules. 

Although to date there has been minimal take up from firms, I have seen – on various discussion forums for those already using the online system –  that many have reported that the current system is unsuitable for use with more complex probate applications. This will need to be addressed if the online system becomes mandatory in the near future. 

Commentators on The Society of Trust and Estate Practitioners (STEP) discussion forums report problems in relation to the interaction between HMCTS and HM Revenue and Customs (HMRC) when IHT forms 421 are issued, leading to inevitable delays and frustration. It’s a case of the left hand and the right hand not knowing what the other is doing.

The online service will clearly need to develop and improve. While making it mandatory is one way to force the take up it might well prove counterproductive if done too early and without the full confidence of the practitioners who will be forced to use it. 

While many practitioners will be more comfortable and familiar with the existing paper-based way of doing things, I’m sure that as online working becomes second nature, not to have an online probate application service will seem archaic. The consultation has a sense of inevitability about it. Change is coming, it’s just a question of when. 

It should be noted that the proposals include a few exceptions to a mandatory online application, such as cases where multiple applicants are entitled under the intestacy rules and applications by officers of a trust corporation. For firms with a large number of wills in which they are appointed as corporate trustees – this will be a disappointment. 

No more delay?

On the launch of the consultation period, an MoJ spokesperson said the online probate services are simpler and quicker – reducing the cost of erroneous forms and saving taxpayers’ money and urged legal professionals to respond to the consultation. 

It was pointed out that the pandemic has seen a significant rise in the numbers of professionals taking the online route. Some of this uptake is, I suspect, more out of frustration with the current paper-based system, which is experiencing unprecedented delays with the issuing of grants of probate taking several months. 

I recognise the need to streamline processes which can only benefit our clients if it leads to the issue of a grant of probate more quickly and efficiently than before. But writing from personal experience of the delays that have followed all the recent moves towards ‘modernisation’ of the HMCTS through its reform programme, I hope that this becomes the reality. 

Too often, we are promised a more efficient service through reform. Unfortunately, the reality often results in more delay and an inability to speak to a human being on the telephone to discuss cases and resolve issues.  

Matthew Duncan is a partner at Druces druces.com