English assets, overseas owner - resealing foreign grants of probate in England and Wales
As a famous proponent of ‘swearing’ Gordon Ramsay might be amused to learn that from the end of November 2018, personal representatives will no longer need to formally swear an oath before receiving a Grant of Representation.
The Non-Contentious Probate (Amendment) Rules 2018 (2018 Rules) were laid before Parliament on 5 November 2018 and come into force on 27 November 2018. The 2018 Rules are short; four pages and the changes seems to form part of the Government’s continuing project to make the probate process more modern and simpler.
The 2018 Rules significantly extended the scope for personal applicants (individuals not represented by solicitors) to make online applications. The Probate Service has accepted online applications from personal applicants when meeting certain criteria since earlier this year, with a view to making the system simpler and ‘easier to understand’. Solicitors are still not able to make online applications.
Executors will also now be required to make a statement of truth and the requirement to mark (sign) the original will has also been removed. The requirement that all executors must swear their oath in front of an independent solicitor (and provide a nominal fee of £5 for the document and £2 for each exhibit) is one of the more arduous aspects of the probate process and its removal may well be a welcome relief for many.
It appears that the primary aim of the 2018 Rules was to facilitate the introduction of online applications. The removal of the oath requirement seems secondary, introduced as a necessity to allow online applications with statements of truth to be submitted.
In expanding the online service one hopes individuals do not avoid using a solicitor where prudent, for example where the estate is taxable, has foreign or complex components, or may be disputed. Concerns have also been expressed about replacing an oath with a statement of truth, on the basis that criminal sanctions apply to making a false statement on oath but not to a false statement of truth. Time will tell whether this incentive's maladministration or fraud. Whilst modernity and simplicity is a positive step, it should not undermine the need to obtain competent legal advice.
The Government’s announcement to amend the procedure for applying for probate in England and Wales comes with less than a month’s notice (and coincidentally at the same time as the Ministry of Justice’s proposal to increase Probate fees). No guidance on the new procedures or transitional arrangements, including whether precedent oaths can be simply amended, and for how long oaths will still be accepted has been issued at the moment. It remains to be seen how the 2018 Rules will be implemented in practice and with what success.
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