Probate modernisation – help or hindrance?

Since January 2019, HM Courts and Tribunals Service’s (HMCTS) has outsourced key parts of its probate function to a private company called Exela, which it says has “30 years of experience in the bulk scanning industry”. Exela has been contracted to scan wills and issue grants of probate digitally.

At first glance, the new online process seems to be an improvement over the old system. Executors no longer need to visit a probate registry to lodge documents and make declarations. Now, an online declaration of truth is all that is required. Documents can be submitted online, and the originals posted for scanning. The new system also allows up to four executors to apply for probate online. HMCTS reports high levels of customer satisfaction with the new service. However, many experts in the probate system, including legal practitioners and civil servants, remain sceptical of the benefits of the new online process.

The Public and Commercial Services Union (PCSU) has sharply criticised the new online process, warning that the move to scanned documents and outsourcing increases the risk of fraud. The union claims its members found the online process increased errors up to 74 per cent and made the process slower.

Probate applications were until recently processed manually by experienced civil servants, with a keen eye for anything suspicious about the documents passing across their desks. Particular care has to be taken to prevent probate fraud. Valuable assets such as houses are often in play, and testators may have been vulnerable for many years before to their death. Sadly, cases of unscrupulous relatives, “friends” or carers altering wills are not uncommon.

HMCTS says it has added anti-fraud measures to their online service, such as holograms, digital seals and digital signatures. However, the signs of fraudulent alteration of wills can be subtle. They include slightly different paper on one page, a different shade of ink, or a paper clip on a single page – implying a missing page. Such tell-tale signs are less apparent on digital scans.

HMCTS says its own staff still validate wills. However, they do so using scanned documents. During the a trial of the digital system, the PCSU said, “The scan quality of the wills being uploaded is insufficient for examination. Our members are being required to make decisions based on a document they cannot see and on information provided by the inexperienced staff of a private company who will have targets related to profit”. The PCSU went on to say that as probate registries close, “the system is likely to implode.” It cited multiple issues arising with digital applications, including applicants entering the wrong details, using someone else’s email address, or the quality of documents such as death certificates not meeting the standard required to prevent fraud.

The civil servants who until recently handled paper applications were renowned amongst probate practitioners for their ability spot forged signatures or suspect documents. They had years of public service behind them, and were inculcated in the values of integrity and impartiality which the civil service strives for. Workers in private enterprises operate in a very different environment. Nor can we always be confident in private companies’ recruitment, training or vetting processes.

The slightest digital alteration of a single scanned document could effect a fraud to the tune of hundreds of thousands of pounds. How sure can we be that adequate systems are in place to verify that the digital document relied upon to issue a grant of probate actually matches the original document? We know that hackers have gained access to some of the most secure government systems in the world.

UK law still requires that a will be on paper, and signed in ink. The business of probate is therefore fundamentally paper-based. It makes little sense to shoehorn a proven paper-based process into a questionable digital system, to the detriment of security and efficiency. The will itself remains the vital document. Old-fashioned, expert inspection of the paper will is vital to ensure authenticity and to avoid fraud.

Published in Lawyer Monthly – 20.5.19