HM Courts and Tribunals Service

4. Mr A complains about HMCTS, on behalf of himself and his wife in relation to an application to obtain the grant of probate for his father’s estate. He says it made a number of errors in the handling of their application which caused a delay in probate being granted.

5. He also complains about HMCTS’s handling of a complaint he initially made in 2021. In particular he says HMCTS incorrectly informed him that the delay in processing the probate application was caused by the solicitors making an error with the application.

6. Mr A says the delay in granting probate caused considerable distress and frustration for both him and his wife. He also says, as a result of their solicitor having to chase their application and provide additional information, they incurred circa £2500 of avoidable solicitor fees.

7. He says HMCTS’s assertion that the solicitors were in error, resulted in them pursuing the matter with the Legal Ombudsman which meant it wasted his time and energy pursuing this, and left him stressed and frustrated by the unanswered questions.

8. In bringing his complaint to us Mr A wants service improvements.

Complaint background 9. In March 2021, following the sad death of her father, Mrs A applied through a solicitor for permission to deal with her late father’s estate (an application for probate). The solicitor initially tried to make the application online. However, due to a discrepancy over dates, this was unsuccessful (the solicitor provided an incompatible date for the IHT form).

10. A few days later, and following advice from HMCTS, the solicitor tried to submit a paper application. According to the solicitor’s cover letter, this included: • Mr A’s father’s original will • An original codicil to the will • Two photocopies of the will and codicil • An application document (reference 1614-6827-2620-4275) • Photocopies of the two signed legal statements and declarations • A cheque for £170

11. The solicitor said HM Revenue & Customs (HMRC) would be sending the Probate Summary Form (IHT421) to the Probate Service in due course. This is a form HMRC issues to confirm that all inheritance tax owed on an estate has been calculated or paid. Without completing this form, probate cannot be granted, as HMRC must confirm that the tax position of the estate is resolved.

12. According to HMCTS, all postal applications should be accompanied by a specific form (known as a PA1A or a PA1P depending on whether there was a will). However, it has said the solicitor had not included either of these forms, which meant HMCTS could not register a formal application (or marry the documents up to an existing application). Instead, HMCTS uploaded the documents to its ‘exceptions list’ (a location for documents that cannot be allocated to an existing case).

13. In June 2021, Mrs A’s solicitor contacted HMCTS for an update on the progress of the application. HMCTS explained there was no ongoing application. In response, the solicitor submitted a further online application which HMCTS accepted as properly made. They also sent HMCTS a copy of Mrs A’s father’s will. In the same month, HMCTS received the IHT form from HMRC

14. Also in the same month, HMCTS asked the solicitor to submit the original will rather than the copy it had enclosed. The solicitor responded and said this had been submitted along with the other paperwork sent in March 2021.

15. According to Mr A, Mrs A’s husband, HMCTS notified him on 5 August 2021 that it had lost the original will (we note the Legal Ombudsman’s report says it was the solicitor who told him). However, in August 2021, HMCTS retrieved the will from the exceptions list (along with the other paperwork) and joined this to the June Application. In the same month, HMCTS approved the grant of Probate.

Administrative background 16. In order for a member of the public to be granted probate, they need to apply for it via HMCTS’ probate service. Only executors named in the will can apply. If there is no will, the closest living relative can apply.

17. HMCTS’ online guidance, ‘Apply for probate’ (the version that was visible on 1 March 2021), says the ideal method of submitting a straightforward probate application is to submit it online. An application should only be submitted in the paper format if it is not suitable for the online journey, which tends to be complex applications (e.g. there is a missing will).

18. HMCTS’ guidance, ‘Apply for probate on paper as a practitioner’, says all standard paper probate applications need to include a PA1P or PA1A form.

19. HMCTS’ told us its contracted administrative body, Exela, is responsible for uploading documents, using ‘Optical Character Recognition’ (OCR), which is technology used to upload paper applications to HMCTS’ online system. It converts typed/handwritten text from images into machine-encoded text. In this context, it creates a probate case using the PA1P or PA1A form, and a reference number can only be generated after the application has been scanned and a case created.

23. Mr A complains about the way HMCTS handled his probate application. He says it caused needless delays, which is a belief he holds based on a report by the LO which said HMCTS had failed to link Mrs A’s documents to her case when her solicitor submitted her probate application on 2 and 24 March 2021.

24. As part of our investigation, we asked HMCTS to explain more about its processes. It explained that, when it received the documents from the solicitor (in March 2021), it could not link them to an existing application (because, at that point, no valid application had been made). This meant the documents were filed in its ‘exceptions’ list, meaning they would be further examined to determine their relevance and purpose. HMCTS explained that such examinations are carried out manually and usually in date order. HMCTS explained that, at the time of these events, its resources were stretched which meant such examinations were taking longer than it would usually have liked (we have seen evidence that, following the Covid 19 Epidemic of 2020, applications for Probate increased significantly).

25. HMCTS further explained that, when it received the valid application (in June 2021), it had not yet completed its examination of the March documents (so was not able to link these with the June application immediately). HMCTS said, contrary to what it (or his solicitor) had told him, it had not ‘lost’ the original will. It had simply not completed the tasks of marrying up the documents submitted in March 2021 with the application submitted in June of that year.

26. We note the solicitor did provide a reference number for the paper application they submitted on 24 March 2021. However, there is sufficient evidence to deduce they had not completed an application for Mrs A by this point, so it is not clear where they would have received this from. We did query this with HMCTS, and it confirmed this reference was not connected to any application relating to Mr or Mrs A. Further supported by the fact the solicitor submitted a screenshot of the IHT section of the online application they had initially attempted, which prevented them from proceeding with the online application.

27. After HMCTS advised Mr A the solicitor had made the error, he told us he had initially complained to the solicitor (and later to the LO) about what he saw as its failure to submit a timely application. However, the LO did not uphold his complaint. It said it was satisfied the solicitor had submitted the relevant documents in March 2021 and that HMCTS, not the solicitor, had been responsible for any delays after this point. This prompted Mr A to complain to HMCTS about its actions.

28. Having looked at matters carefully, we have not found any evidence of maladministration by HMCTS. Instead, there appears to be some confusion over when a valid application for Probate had submitted.

29. There is no dispute that the online application, made in March 2021, failed. There is also no doubt that, following this, the solicitor sent HMCTS documents related to an intended probate application. Unfortunately, it would appear the solicitor did not include the relevant forms needed to make such an application. This meant the documents they submitted could be best described as supporting documents for an application rather than an application itself.

30. We can understand why Mr A may feel this situation could have come to light earlier. If HMCTS had fully examined the documents upon receipt, it may have been able to establish (possibly through further contact with the solicitor) that no valid application existed. In that case, it may have been able to return the documents and/or asked the solicitor to submit the relevant form. Unfortunately, due to the volume of work HMCTS was dealing with at the time, it could not establish this as quickly as it, or Mr A, may have liked. This is regrettable but we cannot say it is evidence of maladministration by HMCTS.

31. We should add that, even if HMCTS had been able to clarify the situation at this point, we cannot say the application would have progressed faster than it did. The evidence shows that, when the solicitor submitted the paperwork in March 2021, as well as the lack of the relevant form, a vital document was outstanding (namely the IHT421) form. As the solicitor explained, at the time of the submission, this document was being prepared by HMRC. As we have said elsewhere, HMCTS could not have processed the probate application until it was in receipt of this document (which did not happen until June 2021).

32. We can see that, in June 2021, the situation changed in that the solicitor had, by now, submitted a new, and valid, application (and HMCTS had received the IHT form). This meant HMCTS could begin properly processing the application. We should add that, at the time, HMCTS’ standard processing time stood at 6 to 8 weeks. The evidence shows that HMCTS was able to issue the grant within this timeframe.

33. Under our principle, ‘Being customer focused’, we expect public bodies to behave helpfully, dealing with people promptly, within reasonable timescales and within any published time limits. The standard timeframe was eight weeks, and it met this standard.

34. We do not uphold this complaint, as HMCTS processed the application in line with its online standards and our principles.

35. We are sorry Mrs and Mr A experienced delays, which no doubt would have been frustrating for them both at such a difficult time and in such difficult circumstances.

36. We realise this is unlikely to be the outcome they were both looking for when they came to us. We hope we have clearly explained the reasons for our decision and would thank Mr A for bringing both their concerns to our attention.

1. We are sorry to learn about Mrs and Mr A’s loss and the experience they had with this probate application. The events have evidently caused them both a lot of stress and distress.

2. Having looked at Mr A’s case, we do not uphold his complaint about HMCTS. While we can see he experienced delays with his application, there is no evidence to suggest HMCTS is responsible for maladministration.

3. We appreciate why this complaint is important to Mrs and Mr A and we will explain our decision in more detail. We hope our explanation provides him with reassurance about how carefully we are considering his complaint.