Digitising probate without new rules “an expensive mistake”

Bond: HMCTS made an expensive mistake

Digitising the Probate Service without modernising the rules was “an expensive mistake”, the former chair of the Law Society’s wills and equity committee has told MPs.

Ian Bond, a partner at Irwin Mitchell, told the justice select committee that the probate process was still only 80% digitised, “with no money or plan for how they’re going to get the last bits done”.

Mr Bond said a working party set up in 2009 had produced a draft set of modernised probate rules, based on the Civil Procedure Rules.

There was a consultation on them but “no outcome was ever published” and the draft rules were “never taken anywhere”.

Mr Bond said the Probate Service could have put implementation of rules “designed for a modern world” before digitisation in 2016, but instead its approach was “let’s just digitise what we’ve got”.

Staff at HMCTS “soon realised that they could not do what they set out to do” and the digitisation project was closed in 2019.

Mr Bond went on: “They’ve made an expensive mistake. Let’s not throw any more money after it. Let’s recognise that they got it wrong. Let’s redo the rules, get them ready for the modern world and then digitise.”

Just as the Law Commission was proposing to make a “generational change” with its wills reforms, the probate rules should be looked at with the same “gravity and importance”.

“Otherwise we’ll have some shiny new legislation for wills but nobody is going to get a grant of probate.”

Mr Bond was giving evidence to the justice committee as part of its inquiry into probate delays, launched last November last.

Earlier in the session, committee chair Sir Bob Neill said that, according to the Ministry of Justice, the number of staff at the Probate Service had dropped from 300 in 2008 to only 153 in 2017, but had now recovered to 280 full-time equivalents.

However there only 2.6 full-time equivalent probate registrars, compared to 30 in the past.

All four witnesses at the evidence session – the others were Sophie Wales, regulatory policy director at the Institute of Chartered Accountants in England and Wales, Mark Walley, chief executive of the Society of Trust and Estate Practitioners, and Stephen Ward, director of strategy and external relations at the Council for Licensed Conveyancers – agreed that outsourcing should be used to bring in experienced staff who could help reduce probate delays.

Ms Wales said this could enable a certain proportion of staff, for example a third, to work with an experienced practitioner in rotation.

This should be combined with setting minimum service standards, including “realistic processing times”, which should be published.

These would include giving practitioners “the ability to speak to the person dealing with the case” and “the ability to talk to somebody within 16 weeks”, she said.

“There are some simple things which could be done that would make a massive difference.”

Mr Walley said outsourcing should be seen as a “short-term solution”, and the Probate Service should consider setting up a complex estates team.

“Most organsiations have people who deal with basic stuff and people who deal with complicated stuff.”

He described not being able to ask a question for the first four months, and cases taking nine months to be processed, as “ridiculous”.

He shared the concerns of the other witnesses as to whether recent improvements in processing times were “sustainable”, and called for better “information, advice and guidance” to reduce the number of questions for the service to answer.

Bringing in external expertise was “a potentially good way to eat into the backlog and build resilience”. Without it, the backlog “could go up again”.

This was the inquiry’s second evidence session. The first heard that probate delays have left some clients feeling suicidal because they are running out of money, while written evidence said law firms were suffering a backlash from clients and increasing unbillable time.

The committee is also running an online survey for those who have used the service in the past six to nine months.

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