Non Contentious Probate Rules Consultation
August 2013
STEP is the worldwide professional association for practitioners dealing with family inheritance and
succession planning. STEP helps to improve public understanding of the issues families face in this area and
promotes education and high professional standards among its members. STEP has 18,000 members across
80 jurisdictions from a broad range of professional backgrounds, including lawyers, accountants, trust
specialists and other practitioners. In the UK STEP has over 6,500 members and it supports an extensive
regional network providing training and professional development.
Testimony to the strength of the NCPR is the fact that they have survived so long without substantial
revision. Many of the suggested changes are therefore not at the request of the practitioner. However,
since October 2012 users have noticed a remarkable deterioration in the service provided by the probate
court system noting the existence of only 3.5 registrars.
Question 1
Do you agree that the rules should be called the “Probate Rules”?
Yes.
Question 2
Do you agree that the structure of the rules is sensible?
Yes.
Question 3
Do you agree that a useful distinction is provided between contentious and non-contentious business?
Yes, but where is the distinction in Part 1 of the Introduction to the new rules? We see that Probate Claims
and Probate Matters are defined but only in the latter case is non-contentious referred to without any
further explanation. We are sure practitioners know the difference but are these Rules just for
practitioners?
Question 4
Do you agree that the overriding objective as drafted is appropriate?
Whilst the overriding objective is admirable, we have serious concerns that it can be achieved.
The overriding objective of the Rules is to enable “matters to be dealt with justly and expeditiously” there
are real concerns that the current system is in crisis and what used to be a perfectly well run, professional
service is in danger of falling into disrepute. From experience it is clear that staff dealing with matters have
no adequate working knowledge of the probate rules, the time taken now for applications to be dealt with
is far longer than it used to be, practitioners are being asked to provide unnecessary
documentation/paperwork (due to the misunderstanding of the rules by staff in the Registries), particularly
where there is a foreign element. We have many examples of procedural errors made by staff who appear
to lack even the basic knowledge of anything other than the straightforward, which does nothing but add
to costs and delays for the Probate Service User. Perversely this lack of knowledge at junior level means
yet more pressure is put on the overstretched services of the expert Registrars. We are happy to provide
such examples if requested.
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Question 5
What are your views on the content of the terms defined in the meanings section?
It is welcomed that the Consultation seeks to simplify the language used in the rules and the terms set out
in rule 2 and in the Glossary set out in the First Schedule and most of the definitions are agreed, although
ideally (following the argument that the language should be simplified) the actual term “office copy” should
be altered to, say, a court official copy (otherwise the definition is fine).
However, whilst it is appreciated that rule 2 (2) specifically states that the meaning of other expressions is
explained ‘but without affecting their legal meaning’, some of the definitions could be misleading. Equally,
some are over simplified. For example:
Domicile – it is not strictly accurate (and is perhaps too simplistic) to state that this means a “person’s fixed
legal place of residence, their permanent home”. Whilst the glossary is intended to explain the meaning of
expressions without affecting their legal meaning,our particular concern specifically relates to personal
applicants who may well simply take the meaning literally. We suggest the definition should make it clear
that there is no single definition of domicile. For example, many people may be resident in a country for
years (e.g. for work commitments), and yet be domiciled in a different country. If it was possible to define
domicile so succinctly it would make the test far simpler and avoid the need for the numerous court cases
each year and avoid the pages of questions of fact raised by HMRC in order to ascertain a person’s
domicile. Anyone applying this simple test as per the proposed definition would be in serious danger of
reaching an incorrect result, with potentially catastrophic results as domicile dictates succession as well as
defining the estate’s inheritance tax exposure. A possible alternative definition could be “There is no
simple definition of domicile, as it is the culmination of various detailed facts, one of the main ones being a
person’s permanent home.”
Life interest - is more than an interest which terminates on death, for example it often gives a right to
income only. We would query whether this definition is overly simplistic.
Devisee and Legatee - We would argue that this distinction is antiquated nowadays and would suggest it
would be simpler to extinguish the difference between legatees and devisees, refer to ‘legatees’ and say in
the glossary in schedule 1 that a ‘legatee’ is a person who receives a gift of personal or real estate from the
deceased. We doubt whether there is still any value in making a distinction between the two in the context
of the rules.
This also applies to references to residuary legatee, residuary devisee, residuary legatee and devisee, and
residuary legatee and devisee in trust.
It is also noted that there are many references to ‘witness statements’ and ‘statements of truth’. There is a
definition in rule 2 of ‘statement of truth’ but should a reference be made to the instructions regarding
statements of truth at paragraph 20.1 of practice direction 32? There is no definition in the rules of
‘witness statement’. It is also not clear whether ‘firm’ includes an LLP or corporate entity e.g ABS. We
believe this should also be clarified in the definitions or glossary section.
Question 6
Should any other terms be defined?
Apart from as indicated above, no. However, depending on the decision reached in relation to question 12,
a definition of ‘family member’ and/or ‘probate practitioner’ would be required to operate the proposed
amendment.
Question 7
Do you agree that the oath should be replaced by a witness statement verified by a statement of truth?
Yes, we agree the logic set out in point 54. However, while probate practitioners will discuss with their
clients the impact of not giving information truthfully, applicants in person may not fully understand the
position. Very clear warning should be provided on the importance of giving the statement truthfully to
applicants in person.
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Question 8
Do you have any comments on, or suggestions about the statement of truth for personal applicants?
See the answer to question 7.
It is noted that in a number of places reference is made to a statement of truth rather than to a witness
statement (see questions 8 and 14).
Question 9
Do you agree this approach?
Yes, this all appears to be logical and appropriate.
Question 10
Do you agree that the location of District Probate Registries should no longer be set out in secondary
legislation?
There is real concern that this suggested amendment could potentially result in more chaos within the
system. The key is to have appropriately trained, competent staff. Please refer to comments made above
at Question 4. It would therefore seem appropriate to have the location of District Probate Registries
prescribed in legislation when there may be at least the opportunity to consult on any proposed changes.
Question 11
Do you agree that the redrafted rule 30 is clearer?
Yes.
Question 12
The working group would like views on the following options for attorney applicants: Do nothing and keep the rule as current drafted,
 Exclude attorney applications from the personal application process,
 Allow only family members to act as attorneys,
 Allow only probate practitioners to act as attorneys, or
 Allow only family members and probate practitioners to act as attorneys.
 Other.
Clearly there has been sufficient feedback to indicate that the rules as currently drafted can be improved
upon. We find it an anomaly that the current rules prohibit a personal applicant from using the services of
an agent but allow them to appoint an attorney. The distinction pre-dates the evolution of ABS and the
concept of a recognised probate practitioner and therefore has resulted in an abusive use of attorney
applications which was not envisaged at the time the rule was devised.
It would appear logical to permit only family members and probate practitioners to act as attorneys but a
clear definition of those two classes would be required. There are dangers even in allowing family
members to take grants as attorneys. While many family members will act for the best of reasons with no
intention of acting in a way which is contrary to the terms of the will, others may misuse the power. On
balance we suggest that only probate practitioners should act as attorneys’ since probate practitioners will
need to be recognised and therefore regulated which supports the fact that the application for a Grant is a
reserved activity.
Question 13
Do you have any comments on the revised rule 43?
We agree to the amendments to rule 43. However the following points should be noted:-
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
Paragraph 73 of the Consultation indicates that the working group believes that the new rules
clarify the existing position that a deputy cannot act as executor or as administrator without a
specific provision in the deputyship order allowing them to do so. It is hard to see how this has
been achieved with the new draft rule itself, Rule 43(1)(a) being identical to Rule 35(2)(a). It is
assumed that by clarification the working group has in mind guidance and/or practice directions
which will accompany the redrafted rules. Such guidance should also make it clear that the Court
of Protection can, under s16 and s18 of the Mental Capacity Act 2005 (MCA), authorise any
individual to make an application for a grant by way of single order rather than by the appointment
of a deputy. This is, however, a matter for guidance only; the provision of the new (unchanged)
rule is clear ‘a person authorised by the Court of Protection to apply for a grant’.

The provisions of Rule 35 NCPR were amended following the coming into force of the MCA in 2007,
a point made by the working group in paragraph 71. The original incapability wording of Rule 35 is
therefore replaced by wording which fits with the definition of lack of capacity in s2 and 3 of the
MCA. It is clear that the working group has had to take a pragmatic view in relation to the updating
of this rule. The use of the MCA terminology, however, in relation to the group of actions and
decisions spread over a period of time involved in ‘administering an estate’ does not in fact sit
easily with the decision-specific structure of the MCA as a whole. Sections 2 and 3 of the MCA
make it clear that the test of lack of capacity is to be applied in relation to a particular decision at a
particular time, rather than to general incapacity. It is, however, hard to see how else this issue
could have been approached and any grant issued will be limited ‘until further and better
representation be granted’ such that, if it is subsequently clear that the originally appointed
executor now seems to have recovered sufficient capacity to take on the administration, a grant
can be issued to them.

New Rule 43(1) refers to the lawful attorney of a person who lacks capacity acting under a
registered enduring power or a registered lasting power. Although it is unlikely that there would
be any possibility of confusion here, it might be sensible for the wording in relation to registered
lasting powers of attorney to make it clear that the Lasting Power of Attorney referred to must be a
property and affairs power and not one for health and welfare.

The guidance must also address the issue of how the Court is to know that a donor of a registered
lasting power of attorney lacks the capacity to act as executor. The mere fact of registration of an
LPA is irrelevant to the issue of the capacity of the donor by contrast with the registered status of
an enduring power of attorney. The Registry currently requires formal evidence of lack of capacity
where an application is made under an LPA and this will still be required-a standard form/ wording
etc would be a great help.

There is a typographical error in Rule 43(2). The reference to paragraph 2 in the last line of the subparagraph of the rule should be to paragraph 1.

Rule 43(3) broadly mirrors its predecessor in Rule 35(3). Additional words, however, have been
added to require the nominated person is ‘fit and proper’. How is this to be assessed? Will there
be guidance issued? Will some kind of certificate be required? The words ‘fit and proper’ match
the previous requirement in relation to grants taken out on behalf of minors in Rule 32(3). This
wording has obviously also been carried forward into the new Rule 32 (now Rule 41(3)(i)). Perhaps
guidance can be given on both sections?

The final change in Rule 43 is the removal of the requirement in previous Rule 35(5) to notify the
Court of Protection where application is made for any grant under Rule 35 (new rule 43). The
working group’s view is that this is an administrative procedure which is no longer required. We do
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
not agree. This rule provides for virtually the only method by which an attorney can take on a
fiduciary role without the specific authority of the Court of Protection and at the very least the OPG
(which has an overall responsibility for the supervision of deputies and attorneys under a registered
lasting or enduring power of attorney) should know how many attorneys are acting in this role.
Perhaps a standard notification could be issued by the Court (Registry) to the OPG to be added to
their records whenever a grant is issued to an attorney or an attorney grant revoked or replaced?
No need for this method for deputies; taking out a grant would be a significant decision taken
during the year which the deputy would put in their annual report.

One further practical point to note regarding the notification of the Court of Protection regarding
attorney applications for grants is that experience shows us that the Court of Protection rarely
respond and it is therefore difficult to gauge whether the papers have ever been received or indeed
lost.
Question 14
Do you agree that settled land should be excluded as a matter of course from the new statement of
truth?
There are concerns that if settled land is excluded as a matter of course it may be overlooked. In certain
parts of the country there is still a significant amount of settled land. The current procedure where the
executor/administrator swears an oath that there is no settled land (or alternatively that there is settled
land) in an estate draws the executors/administrators attention to it and hopefully serves as a reminder to
investigate the possibility. It would seem sensible to deal with the matter at this stage rather than for a
grant to be issued and only when land comes to be sold the existence of settled land becomes apparent
leading to the need to obtain a further grant.
Question 15
Do you agree with the revised proposals for caveats and the new nomenclature?
It is agreed efforts should be made to make sure the procedure and terminology is understandable. It is
agreed that the wording ‘objection’ is likely to be understood much more easily than ‘caveat’, ‘warning’
and ‘appearance’ to a lay person.
It is understood that ‘caveats’ are sometimes used in inappropriate circumstances when perhaps they
should have used a standing search or alternatively when the caveator has no intention of making a
probate claim. It has been known for individuals to enter a caveat when they wish to make a claim under
the Inheritance (Provision for Family and Dependants) Act 1975 and when they just wish to be informed
that a grant has been issued. Therefore more guidance on the procedures and when they should be used is
to be welcomed. However such guidance should be limited to the procedures and should not lead into legal
advice.
There is concern regarding the initial reason which is to be provided in order to lodge the ‘objection’. Will
this be from a list of possible reasons or will it just be up to the ‘objector’ to state their reason. If there is to
be a list, it would be helpful to see it to ensure that it is exhaustive. If it is the latter, who will decide
whether the reason is ‘worthy’ of allowing the objection to be entered?
Usually the ‘caveat’ procedure is used by many when they are unsure whether they will be bringing a
probate action but they have some suspicions or some evidence and they wish to investigate further. This is
a completely legitimate use of the ‘caveat’ to ensure that the estate is not dealt with whilst concerns are
being investigated. However there are concerns that the reason stated for entering the ‘objection’ will be
taken into account in any probate action. For example the reason cited for entering the ‘objection’ may be
one thing ( lack of mental capacity to make a will for example) and the probate claim based on something
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entirely different once further information and evidence is located). Would reasons cited at the ‘objection’
stage be taken into account in the probate claim or would it go further and even limit the grounds for
proceedings?
It is felt that the lodging of an ‘objection’ should not be made too difficult a process as it frequently needs
to be entered quickly.
The general procedure seems easy to follow and this is agreed.
Question 16
The working group would welcome views on what information should be included in the calendar of
grants, specifically in relation to the value of the estate. Of the following options which do you think is
most appropriate?
1. No change to the current process – the value of the estate shown on the grant and calendar, or
2. The value of the estate would be shown on the calendar but not the grant, or
3. The value of the estate would be shown on the grant but not the calendar, or
4. The value of the estate would only be available on application to the court, or
5. Other, please specify?
The answer to this question depends on what use is made or intended to be made of the information.
Research is undertaken by both public bodies and private individuals which may usefully rely on all three
elements of name and address of deceased, name and address of executor(s) and value of the estate.
Whilst private investigation is sometimes for intrusive reasons the inclusion of value is of use to prevent
fraud and assist Charities in particular in having knowledge of their potential inheritance.
We would favour Option 2 – the information would be available on the calendar for interested parties but
would not be shown on the face of the grant as office copies are freely distributed to all assetholders and
others with no regard for privacy.
Question 17
Do you agree that copies stamped with the seal of the court should be limited to executors or
administrators and those who can demonstrate a valid reason for being provided with such a copy?
It is agreed that sealed copies of grants should be limited to certain individuals. This will assist in combating
fraud. However it is not clear how it would be determined what a ‘valid reason’ would be and who would
determine this (presumably the probate registrar?). Individuals looking to put together their family tree
would not require a sealed copy and perhaps would not even expect to receive one. However it may be
necessary for genealogists and anyone investigating a family tree for a legal purpose to have a sealed copy
in order to prove that it is a legitimate document.
Question 18
In what circumstances do you think someone other than the executor/administrator would require such a
copy?
The executors/administrators of the spouse of the deceased may need this if trying to claim the
transferable nil rate band.
Genealogists and persons investigating a family tree for legal purposes, perhaps for an intestate estate, a
statutory will, to locate trust beneficiaries would all require a sealed copy.
It is unlikely for both of the above that an unsealed copy would be sufficient.
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Question 19
Do you agree with the proposals in respect of “sealed and certified” copies?
On the face of it this seems sensible, provided it cuts down on time delays and only if there are the staff
competent to do so – please see comments at Questions 4 and 10 above.
Question 20
Do you agree the routes of appeal?
Yes.
Question 21
Do you agree with the new procedures for requesting an inventory and account?
The new proposed procedure would make the system of requesting an inventory and account much easier
and quicker. It is, however likely that this procedure will be used more frequently and perhaps without
initially asking the executor to provide an account or update without recourse to the court.
In cases where an executor/administrator has refused to provide information or perhaps has not
responded then a simpler procedure for obtaining information regarding the estate is to be welcomed.
Would it be sensible to provide evidence to the court of the attempts made to ask the
executor/administrator to provide the information when making the application in order to avoid wasting
court time for information that the executor/administrator may readily provide?
Question 22
Do you agree that a fee should be charged for pre-lodgement advice?
On the basis that we recognise there will still be cases where pre-lodgement advice is needed then it seems
entirely reasonable to accept a charge for this service. However in return (see question 4) the court must
be capable of providing accurate advice and staff who fully understand the rules.
STEP UK Practice Committee and Mental Capacity SIG
23.08.13
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