Getting bogged down in Queries
27 October 2022
I was somewhat disappointed to see an article appear in the Irish Times on Tuesday the 25th of October 2022 which talked about delays in the probate office and in particular the Principal Probate Office in Dublin. Everyone has anecdotal evidence about the respective turnaround in the Probate Office or their local registries. I did find it surprising that the standard time now has gone to 4 months. This is certainly a change because previously the probate office had a notice on the website saying that the waiting time was 8 weeks.
This increase in waiting times is certainly a factor to be managed for client expectations in relation to dealing with probate applications. The article notes in addition that many solicitors in house sale situations leave applying for a grant too late in the overall process. That may be the case but generally, I would counter that by saying solicitors are alive to the need to have a grant applied for well in advance of a sale. In some cases holding off could be justified, because it is difficult to know the value of the property (in some cases) until it is marketed and gone sale agreed. In these cases holding off may be done for valid reasons in determining a date of death valuation of a property.
The article also mentions the degree of queries raised and the number of rejected applications. This ties into my blog last week where I noted that John Glennon had invested considerable time educating the legal profession to avoid common mistakes. The article indicates that 60% of cases are rejected because of solicitor errors. That does appear high and I don’t question that a lot of applications lack title. However, it has been my experience that rejections of Oaths are sometimes more a matter of style than substance -the title is correctly set out, but not expressed in a manner that fits the box.
So for example I had a case recently where an application was rejected and one of the queries raised was that the witness to the oath was different from a witness to the exhibit. In fact, it was the same solicitor in both cases that assisted with swearing and the signature was pretty similar between the two. That query could have been resolved by requesting a letter of clarity rather than a rejection. That is not to doubt that the vast majority of cases of rejection are valid, but I do recall John Glennon at a CPD seminar once commenting that he is trying to dial down the rejection settings of the Probate machine but that he can only do so much; that the probate examiners need a degree of autonomy in their role and some are more query prone than others.
It is disappointing to note that the Probate Office remains under-resourced. That appears to be a perennial problem. It may move up the political priority list, if, as the attached article suggests that probate delays are adding to the housing crises by creating log jams in the conveyancing system.
Everyone must play their part. Solicitors the probate office and government. Hopefully, all parties will work together to move probate applications back to a reasonable timeframe and those historic logjams will be cleared off.
I attach a link to the article here.
If you have any queries on probate, will drafting or capacity issues, please reach out to me at firstname.lastname@example.org