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Non-Contentious Probate Rules — Where are we now?
Article date: 22/07/2014
This article is reproduced with the kind permission of Thomson Reuters. The article first appeared in Issue 4  of Private Client Business at pages 197 to 201 (P.C.B. 2014, 4, 197-201). The article remains copyright of Thomson Reuters (Professional) UK Limited (© 2014 Thomson Reuters (Professional) UK Limited). Private Client Business is published by Thomson Reuters (Legal) Limited trading as Sweet & Maxwell. Sweet & Maxwell ® is a registered trademark of Thomson Reuters (Legal) Limited.
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Partner, Higgs & Sons, Brierley Hill
In his 2013 article[ii], Keith Biggs considered the main proposals for amendments to the Non-Contentious Probate Rules. The Ministry of Justice's consultation that accompanied the proposed amendments closed on August 29, 2013 and Lucy Obrey asks where are we now? It would appear that the answer to this question is that we are no further forward!
In early 2009, the then Lord Chancellor and Secretary of State, Jack Straw, agreed with the then President of the Family Division, Sir Mark Potter, to establish a working group to consider the revision of the Non Contentious Probate Rules 1987 (NCPR). This was to build on the work of the 2004 Probate Review which set out a range of recommendations to improve the service provided by the Probate Service.
When launching the consultation Sir Mark Potter, said:
"... the current rules are far from user-friendly and provide little guidance. They have not been widely updated since 1987 and I hope that the rules produced by the working group will be more readily understood by the public, as well as bringing the procedures into line with more recent legislation."
The working group was initially chaired by Mr Justice Munby and the review was expected to be completed by the end of 2010. After years of waiting and a change of chair to His Honour Judge Philip Waller, a draft set of new rules, the Probate Rules 2013, were issued by the Ministry of Justice for consultation[iii]. The consultation was aimed at those interested in the administration of estates, members of the public and probate practitioners in England and Wales. The consultation was initially to end on August 9, 2013, but due to delays in making the documentation available this was extended to August 29, 2013. The responses should have been published in September 2013 but they have not yet been seen!
The NCPR pre-date the substantial changes in substance and approach of the Civil Procedure Rules 1998 (CPR). The NCPR need to be updated and revised to bring them in line with modern procedure rules. Testimony to the strength of the NCPR is the fact that they have survived so long without substantial revision.
There were several indications from the committee in the course of their deliberations of the changes that they were considering, and therefore the changes being proposed do not provide for anything unexpected or exciting. Although the rules have been re-written to make them clearer, in most cases the substance of the new rules will remain the same.
Key changes being proposed
The greatest change is to the language of the rules. Latin terms and phrases have been updated into modern English where possible: caveat becomes objection; citation becomes notification; grant ad colligenda bona defuncti becomes a collection grant; oral will replace nuncupative will. Also going are the words "non-contentious" from the title of the rules, which will be known simply as the Probate Rules, the intention being to make the rules easier for non-professionals to understand.
The simplification of the NCPR is a commendable aim. However, the removal of some Latin terms may confuse rather than clarify the position, as those terms had a fixed meaning and their replacements are rather more vague.
For the first time, the new rules will see the introduction of an overriding objective, namely, "... to enable probate matters to be dealt with justly and expeditiously by the registries and courts and by persons dealing with the registries and courts.". The concept of an overriding objective for rules of court was introduced in the CPR in order to help applicants understand their rights and responsibilities and the court's role in issuing grants of representation.
The order of the rules has also changed, having been restructured to a more logical order that reflects the process of applying for a grant of representation. A derivation table was published with the consultation to assist practitioners. The new structure consists of eighteen parts beginning with an introduction to the new rules, followed by rules on the functions and powers of the court, entitlement to a grant, grant applications, notifications (currently citations), objections (currently caveats), probate claims and amending and revoking grants. The remaining parts include rules relating to records of grant applications, searches, applications and appeals and costs.
Witness statement and statements of truth
As expected, the new rules provide for a witness statement verified by a statement of truth, which replaces the requirement to swear or affirm an oath. If agreed, such an amendment is likely to be particularly well received, by those practitioners in rural areas where finding an individual to assist with swearing an oath can often be difficult.
Again following the way the CPR works, all applicants will simply complete the witness statement and sign a statement of truth. Personal applicants will no longer be required to physically attend their local probate office to swear an oath before a grant can be made to them, although it appears that the Probate Registry will retain the right to call an applicant for an interview. This will save time and money for applicants and the registries.
The witness statement should state:
- a) the full name, date of birth, date of death (as stated on the death certificate) and the address for the deceased, which must include the state or territory where the deceased died domiciled;
- b) the basis on which the applicant claims to be entitled to the grant;
- c) the manner in which anyone with a prior right to the grant has been cleared off;
- d) whether a minority or life interest arises under the will or intestacy; and
- e) the gross and net value of the estate of the deceased.
Change to the registries
The removal of the requirement for personal attendance at the Probate Registry combined with a change to the rules that removes the prescription of Probate Registry locations by secondary legislation and the simultaneous retirement of many registrars maybe used by the Ministry of Justice to justify the closure of a number of Probate Registries. The consultation paper does not specify why the proposed procedural changes have prompted a consideration of the rules providing for the location of the registries. Is the rationale for the proposal the expectation that the existing number of registries may not be required if there is a drop in the number of personal applicants required to attend a registry to make a statement of truth? There will always be a need for access to qualified staff for grant applications that are not standard. Perhaps the telephone helpline, which is also to be reviewed and run jointly by the Probate Service and HMRC, will assist. This helpline is to ensure the applicant receives the appropriate level of assistance to enable them to complete an application and contact registry staff if necessary.
It is suggested that developments on this particular point should be closely monitored.
As a result of a concern over its potential abuse, a complete review of the attorney application process has also been undertaken. Evidence from the attempt to make wills and estate administration reserved legal activities showed that some unregulated providers were obtaining power of attorney to deal with the Probate Registry and preparing probate papers to gain control of the estate.
The options are:
- a) do nothing and keep the rule as currently drafted;
- b) remove attorney applications from the personal application process;
- c) allow only family members to act as attorneys;
- d) allow only probate practitioners to act as attorneys; or
- e) allow only family members and probate practitioners to act as attorneys.
Grants where applicant is mentally incapacitated
The working group has proposed the removal of the requirement to give notice of an intended application under NCPR 1987 r.35 to the Court of Protection where the Court of Protection has not authorised the applicant to apply for the grant. The Probate Service must consider an applicant's capacity to administer the estate in accordance with the requirements of the Mental Capacity Act 2005. The giving of notice, in the view of some practitioners, is an unnecessary administrative procedure. There is also clarification in the revised rule that an individual
acting as a deputy cannot apply for a grant unless the order appointing him as a deputy specifically permits him to apply for a grant.
Another change will make it easier for those interested in an estate to obtain a probate inventory (the estate accounts) from the personal representatives, as the rules state that the court will generally make an order for this to be done without a hearing.
The working group has provided a number of options regarding the information which should be included in the calendar of grants as follows:
- a) no change to the current process-the value of the estate shown on the grant and calendar; or
- b) the value of the estate would be shown on the calendar but not the grant; or
- c) the value of the estate would be shown on the grant but not the calendar; or
- d) the value of the estate would only be available on application to the court.
The consultation paper provides that the requirements in relation to settled land remain the same but there is a suggestion that the applicant is no longer required to "swear" that the estate does not include settled land.
The consultation paper considered whether copies of documents which bear the seal of the court should be limited to personal representatives and those who can demonstrate a valid reason for being provided with such a copy. This is another area where progress should be monitored closely.
Fees regarding pre-lodgement advice
Although not set out in the NCPR, the Probate Service has historically provided a service whereby it settles (i.e. checks) draft oaths prepared by probate practitioners and provides pre-lodgement advice on more complex cases. The service, it would appear, has been abused by practitioners in the past with a significant number settling oaths as a matter of course.
The introduction of a witness statement rather than an oath will mean that there are no longer any oaths to settle. However, it is suggested that probate practitioners may very well require the witness statement to be settled in complex cases. Such a service is being considered as part of the consultation process. It is also likely that an increased fee from the current settling fee might be charged.
Practice directions and additional guidance
The rules are to be supported by practice directions, forms and additional staff guidance to replace current internal guidance.
The Law Society's response to the consultation, dated August 2013[iv], is largely in agreement with the proposed changes, but there were some concerns raised:
- a clear definition of the term "family members" may be needed if this category is agreed, as previous consultation on the regulation of will writing and estate administration has demonstrated the potential for abuse;
- regarding the value of estates listing on calendars and grants, a desire for an "opt-out" procedure to allow removal of information from the grants where clients and practitioners are unwilling to disclose;
- lifting the restriction on ordering an inventory and account may result in a cumbersome number of requests, especially if personal representatives were to delay in providing Estate Accounts.
STEP UK Practice Committee and Mental Capacity SIG also published its response on August 23, 2013[v].
Progress on this matter is eagerly awaited!
 P.C.B. Issue 4 © 2014 Thomson Reuters (Professional) UK Limited and Contributors
[i] Lucy Obrey is a partner in the Private Client Department of Higgs & Sons, Brierley, West Midlands. She deals with all aspects of private client work and has a particular expertise in inheritance tax and estate planning. Lucy lectures nationally on wills and estate administration and is a regular speaker at the annual STEP Spring Conference series.
[ii] "The Probate Rules 2013"  P.C.B. 317.
[iii] https://consult.justice.gov.uk/digital-communications/draft-rules-in-relation-to-non-contentious-probate [Accessed June 8, 2014].
[iv] http://www.lawsociety.org.uk/representation/policy-discussion/non-contentious-probate-rules-1987/ [Accessed June 8, 2014].
[v] https://www.step.org/sites/default/files/NCPR%20Response%20August%202013%20FINAL.pdf [Accessed June 8, 2014].