The past, present and (possible) future of wills and probate?

Since the emergence of covid-19 in March 2020, every industry in the UK has faced challenges. Some have seen their development and growth thwarted, whilst others have shone. We’ve hopefully seen the back of the worst of it. I’m now at the beginning of my second week working at Roythornes, so I thought it was an opportune time to reflect on what’s to come in the probate industry.

First, some facts & figures

• The over 65s now represent 18.5% of the nation’s population. 20 years ago, the proportion was closer to 16.5%. With the increase in life expectancy comes the increase in people dying older and encountering age-related diseases (e.g. dementia) during later life.
• It is reported that the number of people that died in the past year without a will had grown on previous years, arguably as a result of the number of unexpected deaths caused by the pandemic. The number of UK adults with a valid will still hovers around the 40% mark, which is a consistent level seen over the past decade.
• Practitioners are making more online probate applications, principally due to changes in our working arrangements. In the final quarter of 2020, 46% of all probate applications were submitted digitally. In the final quarter of 2019, just 19% of applications was being made electronically. Applications made electronically are processed far quicker, meaning that beneficiaries and charities can receive their inheritance and donations far quicker. There was also a reported 15.9% increase reported in the number of probate grants issued in the first three quarters of 2020. By the end of the year, the total number of grants issued was approximately 260,000, an increase from circa 240,000 the previous year.
• Practitioners working in this area were one of the few recognised disciplines for “key workers” during the pandemic. This has in turn seen growth in employment figures in this area.
• UK charities have reported that their legacy income (donations made in wills) is now worth more than £3 billion per year.

What’s new?

• Technology

It was easy to start with technology. The private client sector is not alone in adapting technologically to the pandemic. We’ve all faced many challenges. Almost overnight, one evening in March 2020, we were forced to embrace new and better ways of working. Parliament was forced to consider emergency updates to the archaic Wills Act 1837 to allow remote witnessing of wills. More probate practitioners have ditched paper probate applications in favour of the online equivalent. A new online process for creating lasting powers of attorney was also launched. There was also the very-welcomed move from the Probate Service to bring all non-contentious probate registries under one roof in Birmingham.

• Volume of work

Speaking with other practitioners in the area at other firms, both the contentious and non-contentious private client sectors are inundated with work. I have seen it reported nationally that some firms have doubled their fee income in contentious probate work in the past year.

• Timescales

This is not necessarily new, nor is it restricted to the probate industry, but it is worth a mention, nonetheless. Many of the courts and tribunals seem to be operating at longer timescales than before. There were some teething problems from the move to the centralised probate service system in Birmingham. 6 months ago it was reported that the most straightforward grant applications are taking approximately 7 weeks to be processed.

What to expect in the next year?

Technology in certain respects is still in its infancy. The contentious probate cynic in me supposes that this would inevitably lead to increases in contentious probate work. For example, I predict that by the end of 2022, we will likely have seen our first High Court claim for want of due execution (a challenge to the way in which a will has been executed by video witnessing).

The volume of work increased last year, especially in contentious probate work. The shared consensus amongst others that I have spoken with is that there are no signs that this trend is likely to change; all indications are that growth will continue.

I say more with hope than anything else, but I hope to see that the teething problems experienced by the new centralised probate service will now have been overcome, and notwithstanding any increases in grant applications, we should see a reduction in processing times.

Inevitably, austerity measures are just around the corner. Last month, it was announced that National Insurance contributions would drastically increase (for some). Last week saw the end of the ‘furlough’ scheme. The Universal Credits top-up payments came to an end last week too. With an increase in the strain on family finances, I foresee more disputes arising. The Inheritance (Provision for Family and Dependants) Act 1975 has historically been seen as a means for the court to award provision from deceased estates for certain categories of persons in the most deserving or needing circumstances. With more people in necessitous circumstances, I think we are likely to see more challenges brought to estates in this way.