Charlotte Nock a Partner, in Girlings’ Private Client team examines the implications of the recent changes, made with little prior warning, on 27 November 2018 to the rules which govern applications for Probate.
What is an application for Probate?
Probate is the process of proving a Will is the last Will made by the deceased. For many years, upon applying for Probate the applicant has had to swear an oath stating that such a Will was the last Will made by the deceased. The applicant has had to stand before a solicitor or commissioner for oaths, sign their oath, mark the original Will and make their oath.
A Statement of Truth
The applicant is no longer required to swear an oath or mark the original Will. Instead, the person submitting the Will to the Probate Registry signs and dates a Statement of Truth. The Will is no longer marked and submitted as an Exhibit to the Court. Instead, the Statement of Truth states the Will as being ‘now produced to the Court’.
This change has come about as a consequence of the Government’s attempt to simplify the language of Probate. That being said, terms such as ‘caveat’ and ‘grant ad colligenda bona’ still remain!
Criminal sanctions and a false Statement of Truth
On reading this, you would be forgiven for thinking that the only reason why a solicitor is mentioning this apparent inconsequential change in terminology and procedure is because solicitors are no longer required to administer oaths for Probate, thus missing out on their fee and are therefore aggrieved by this recent change. The lack of fee is not something which bothers this solicitor in the slightest. What is worrying is that criminal sanctions apply to those knowingly making a false statement under oath. It is not clear that the same penalties can apply to making a false Statement of Truth (despite the Statement of Truth attempting to assert that there may be criminal sanctions to a false statement).
Standing before someone to swear an oath is a sobering moment as is making your mark on someone’s last original Will. By removing both of these requirements when applying for Probate, will we experience a rise in the wrong Will being proved? For those whose consciences are lighter than most, what would stop you from putting forward a Will as someone’s last where the terms benefit you, despite you knowing that there was a later Will amongst the deceased’s papers? It would be nice to be able to say that such unconscionable people don’t exist however, experience tells this writer that where there is a Will, there is a way.
For further advice on this and other related issues, please contact Charlotte Nock in our Private Client department.
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