Neill: Government apology welcomed
The Probate Service needs to share more data about its performance so that lawyers can manage client expectations, the outgoing chair of the justice select committee has said.
The committee’s inquiry into probate delays, which has seen it gather extensive written evidence and hold a series of oral hearings, was cut short by the election being called, meaning a full report was not produced.
But Sir Bob Neill, who is standing down as a Conservative MP and was chair of the committee for nine years, wrote to justice minister Mike Freer to set out some key findings and suggestions for improvement.
Prior to 2017, he wrote, “the Probate Service worked” and it was the government’s “failure to understand the magnitude of the centralisation and digitisation projects and a failure to appreciate the importance of an experienced and skilled workforce” that led to its collapse.
The closure of probate registries and sub-registries began in 2017.
“As you said to the committee, HMCTS [HM Courts & Tribunals Service] tried to do too much too soon, with too little testing and the [Ministry of Justice] lacked the skill to manage complex IT and business reengineering projects simultaneously.
“In this context, your apology before the committee for the level of service failure is to be welcomed… It is clear that you and the wider team have devoted time and energy to understanding what has gone wrong and on working on the recovery plan.
“I sincerely hope your predictions for the sustained recovery of the service by September 2024 will be borne out.”
Sir Bob suggested that HMCTS “conduct and publish a lessons learned exercise to ensure that the causes of failure are fully understood across the department”.
He continued that the government displayed a “rather narrow” understanding of the impact of the problems, which focused on the delays caused to executors in performing their duties.
“The evidence the committee has received reveals far wider impacts: Cancer Research UK had to delay 44 cancer research projects; council adult social care teams are chasing millions in debt; and individuals have considered suicide due to being put under significant financial pressure while grieving.”
He urged HMCTS to work with the Department for Levelling Up, Housing and Communities, local authorities and empty home stakeholders to consider what it can do to ensure that probate was not a cause of care home debt or empty homes either due to delays at the service or due to unintentional incentives for properties to remain in Class F, the council tax exemption for dwellings left empty by a deceased person.
Sir Bob recounted how practitioners had outlined the significant stress they had suffered as a result of the delays.
“We heard that the delays were impacting firms’ cashflow as they are unable to charge for cases and that firms are also blamed by clients for the delays. The Law Society states that firms are at increased risk of claims, which, even when unfounded, can significantly increase the cost of their professional insurance.
“The lack of transparency from HMCTS around how long applications are taking, means there is a discrepancy between how long individuals believe a grant of probate will take and practitioners’ experience.
“We heard that this discrepancy has led to distrust between clients and practitioners, as clients do not believe that probate can take so much longer than HMCTS guidance claims. Written evidence also describes professional firms needing to allocate more resources to handling cases and complaints that arise as a result of delays.”
Sir Bob went on: “It is unusual for select committees to come across a cost-effective response to problems that can be implemented at speed without political difficulty. However, on this occasion, there is such a response: release the data.
“Government evidence makes clear that HMCTS believe there to be sufficient data in the public realm. Given that even those organisations working most closely with HMCTS, such as the Law Society and the Institute of Legacy Management, feel that data sharing and publishing should be improved, I suggest that HMCTS engage more, listen harder and publish as much data as is practicable as frequently as feasible.”
This would allow the legal sector to manage client expectations and communicate with the public, enable the charitable sector “to create robust financial forecasts that enable them to spend money on their charitable purposes” and “increase confidence and trust through transparency”.
Sir Bob added that the committee had heard concerns about “bad actors in the probate and will writing sectors” along with support for further regulation, but said the timing of the election meant MPs had “insufficient time to consider the best approach to concerns about the will writing and pre-paid probate”.
He also said it might be time for the Law Commission to consider whether the Non-Contentious Probate Rules 1987 needed to be updated.
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