Tech-enabled probate, modernised LPAs, digital assets, and more – what is on the wills and probate industry’s agenda for 2023?
Here are the thoughts of several key voices on what to expect.
What area of the sector will change the most in 2023?
“What I do really hope changes in the new year is the levels of service we as an industry receive from the government departments we deal with,” said Best Foundation advisory board member Philip Pamment:
“This has caused a lot of distress for lots of families and has put additional pressure on estate planning businesses causing issues out of our control.”
Sarah Bolt, Managing Associate at Freeths, said 2023 will see the probate sector continue to “embrace the use of technology” following a period of adaptation.
“Technology now appears to have been embedded within the probate sector,” said Bolt, referring to HMCTS’ digital probate platform and subsequent Non-Contentious Probate (Amendment) Rules 2020 mandating its use in most cases. Bolt continued:
“For 2023, we are expecting the probate sector to embrace technology event more, with the Ministry of Justice and the Office of the Public Guardian looking to modernise other areas, such as using an online platform for Lasting Powers of Attorney. Modernisation of Lasting Power of Attorneys are well outstanding given that it is heavily paper based, costly, and inefficient.”
Bolt suggested this will build upon the online LPA tools already made available by the OPG.
On the topic of remote witnessing, Bolt said:
“Going forwards, it is expected that the Law Commission and government will consider whether to extend remote witnessing to become a permanent change to the law.
However, only time will tell as it is likely to turn on the number of challenges that arise due to remote witnessing. Overall, the future of legal documents looks digital.”
The Freeths Managing Associate concluded that, should legislation to modernise LPAs be passed, the way in which legal documents are witnessed “may be changed forever”.
Emily Deane, Technical Counsel and Head of Government Affairs at STEP, said there is a “lack of public awareness about what will happen to digital assets on death or incapacity”, adding that “the industry is experiencing difficulties accessing digital assets on death or incapacity of a family member, causing distress and frustration”. Deane continued:
“STEP would like to see service providers review their policies and practices in relation to access to online accounts. We have been raising awareness this year of the existing legacy settings that some service providers currently provide, but we would like to see more uniformity in the service agreements that service providers ask their users to sign, which would help streamline the process for grieving families and their advisors.”
The hurdles that lie ahead for practitioners next year
The changes – or lack thereof – brought by 2023 will inherently bring hurdles for practitioners to combat.
A handful of the complexities facing practitioners and therefore requiring further focus were spelled out by Emily Deane:
“[First,] the inconsistencies and deficiencies relating to the creation, recognition, and enforcement of protective measures (such as POAs) to enable clearer and more efficient planning for incapacity.
[Another issue] is legislation around cohabitation rights in relation to cohabiting couples, siblings and those in platonic relationships across various jurisdictions. The existing legislation appears to be lacking, inconsistent, or discriminatory.
The legal definitions of family members, particularly the legal definitions of children and the differing rights of those children, and the current discrepancies in the law [also present a hurdle].”
Deane added STEP “recognises the need to engage with families and governments globally in 2023 on these issues to produce industry solutions and best practices that will help families plan for their futures with certainty and clarity”.
Colette Best, AML Director at the SRA, cautioned practitioners of the very real threats money laundering will continue to pose throughout 2023:
“Probably the biggest risk across the board is complacency. The profession should recognise that everyone might be targeted, big or small, and regardless of the areas of work they carry out. Firms should regularly assess their processes, have the right policies in place and make sure that staff are regularly training on their obligations.
This will be especially important against both a worsening economic situation and potentially action against the UK from hostile jurisdictions. Firms must make sure that they are carrying out the right checks with regards the government’s financial sanctions regime, as well as their normal anti-money laundering due diligence.”
Sarah Bolt highlighted the continuing delays and backlog of applications at the Probate Registry, HMRC, and the Court of Protection which are affecting practitioners.
“Practitioners will need to continue with managing their clients’ expectations and providing costs estimates that account for the delays and growing time it is taking to process applications. This is increasing pressure on a law firm’s margins as more time is being spent on matters due to the delays and chasing of third-party organisations. This in turn creates more stress and anxiety for clients, especially with the cost-of-living crisis, rising inflation and interest rates.”
Another issue raised by Bolt is the propensity for “bad eggs” to make their way into the sector as more new firms and practitioners – many of which unregulated – enter the sector:
Such new entrants “may not assess a person’s capacity appropriately when they come in to make a will, or do not have appropriate insurance in place should something go wrong”, said Bolt:
“This is in turn is causing a knock-on issue, with an increase in disputes arising, particularly where it is felt the firm instructed has not assessed capacity appropriately, or has not taken the appropriate safeguards to mitigate undue influence and/or fraud from occurring.”
Finally, while the estate planning sector should be “mindful” of the cost of living crisis, on a positive note Philip Pamment suggested it “should not be affected as other sectors and good estate planning practices will continue to prosper and provide an excellent service to clients old and new”.
2023 brings cause for optimism
Sarah Bolt pointed out the Law Commission’s continued efforts in modernising the law:
“Whilst cohabitation [reform] may not be on the agenda, the Law Commission is still continuing to consider other areas and see if steps can be taken to modernise the law.
In July 2017, the Law Commission considered a reformation to the current law of wills, which dates back to 1837. This also proposed changes to how a person is assessed as having capacity to make a will, founded in the case of Banks v Goodfellow in 1870.”
Explaining what reform to wills may look like, Bolt continued:
“Reforms proposed by the Law Commission are wide-ranging and it is now anticipated that the report may come through in 2023. Whilst any changes to the law would not be expected to come into effect until 2025, this would depend on the government having the time, and inclination, to address these.
The report is considering many issues, such as electronic wills so that formalities for signing a will can be kept up to date with modern society and technological advances. It is hoped that this will also consider any reforms required to deal with digital assets so that if there are any changes these can be made all at the same time.”
Ian Bond, Head of Wills & Estates at Thursfields, said he is “looking forward to Stephen Metcalfe’s Powers of Attorney Bill making its way through parliament”.
“It has had its second reading and, rarely for a private members bill, the government has indicated its support for the Bill as it matches broadly with the objectives that the OPG and Ministry of Justice identified in their recent project on modernising LPAs.
As a practitioner I welcome the proposals set out in the bill to update the LPA process and exploit digital options but recognise that not everyone is able or willing to use modern technology. This should be catered for, but not be the reason to hold back.”
Philip Pamment concluded:
“I am extremely excited for what we have planned at the Best Foundation. We will soon be announcing some exciting partnerships and opportunities for our members in the new year, and we have our first National Conference at an iconic venue with a speaking lineup to match that will help our members grow their businesses.”