Probate delays putting law firms in clients’ firing line

Probate: Law Society calls for minimum service levels

Law firms are suffering a backlash from clients, and increasing unbillable time, as a result of the continuing delays at the Probate Service, the Law Society has said.

It called for users should be “reimbursed appropriately” where the Probate Service has failed to m a meet a minimum service level.

The justice select committee has published the written submissions received for its inquiry into probate delays and also began hearing from witnesses this week.

Justice minister Mike Freer told the House of Commons in January that probate backlogs were reducing, as the service dealt with the largest amount of applications in 2023 that it had received since 2006.

While accepting that the backlogs were “slowly being reduced”, the Law Society painted a grim picture of the impact of the delays on clients, such as additional costs, unnecessary interest payments and delays in being able to sell assets.

The impact on solicitors included “firms being unable to charge for the amount of time taken on a case”, and “clients blaming them for the delays, expecting solicitors to be able to resolve issues beyond their control”.

The society went on: “We are aware of a firm whose client tried to bring a claim against them because of the delays. The firm lost billable hours and had to pay thousands in insurance excess.”

Private client lawyers also suffered “frustration and unnecessary stress, with some questioning whether they would remain in the profession given the impact this is having on their health”.

Given the “lack of certainty and predictability around timings within the Probate Service”, the Law Society said a minimum service standard should be introduced, with “clear processing times, guidelines and performance metrics” to help “manage expectations” and reduce stress and frustration.

“Where these standards are not met, end users should be reimbursed appropriately, such as via a refund of a proportion of the fee they have paid to use the service or rescinded interest payments where delays are due to online systems.”

In its response, national law firm Irwin Mitchell said the society’s proposal was “compelling”.

The firm added: “Any increase in fees would be hard to justify given the standard of service offered to clients at present, which does not present value for money.”

Meanwhile, the Council for Licensed Conveyancers called for “a thorough review of the will-writing, storage and probate process”.

“This should not set out to digitalise the current arrangements. Rather, representatives of all the organisations and professionals engaged should work together to design a better approach that reflects contemporary processes, tools and risk mitigation.”

Summarising London law firm Wedlake Bell’s submission, partner Nick Mendoza said most issues could be traced back to the HM Courts and Tribunals Service (HMCTS) £1bn reform programme which “in our experience so far has radically diminished what was a highly efficient, effective, and self-funding Probate Registry”.

At the committee hearing this week, MPs heard Alex McDowell, vice-chair of Remember A Charity, a consortium of 200 UK charities, say that legacies provided charities with £4bn of their annual income; 10,600 charities benefited from a legacy last year.

Remember A Charity estimates that £800m in charitable legacy income is currently locked up in wills awaiting a grant of probate and Mr McDowell said the probate backlogs were “yet another challenge” for the charity sector, struggling with inflation and increased demand.

Angela Morrison, chief operating officer at Cancer Research, said the charity reckoned that, as of January, about £30m of income was tied up in the probate process.

“We do not put the probate backlog into our budget forecast because we can’t commit to spending the money unless we know it is going to come in.”

This meant taking money out of capital investment and not investing in 44 research projects.

Ms Morrison said the “unpredictably of the service causes us to make decisions internally that we don’t want to make”.

Calling for greater transparency from HMCTS, she said: “When we don’t have the insight we cannot plan and we’re left in the dark. It’s really hard.”

We reported in January that the Society of Trust and Estate Practitioners has called for complex probate cases to be outsourced to law firms to cut the backlog.

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