21 January 2019

Stop swearing!

By Miranda Marshall, Director, Hayes + Storr.

The archaic system of making a formal oath before a solicitor or legal executive, acting as Commissioner for Oaths, as part of the procedure for an application for grant of probate of a Will is to cease. The Non-Contentious Probate (Amendment) Rules 2018 have the effect of replacing the formal Oath with the signing of a ‘Statement of Truth’. In these days of false news there is some amusing conjecture to be had on this somewhat Orwellian-sounding title of the new document. ‘Truth’ is subjective. In reality, however, it is a move with the times.

I will miss the companionable popping round to other local solicitors, sometimes in my own right as a professional executor, sometimes accompanying my recently–bereaved clients, in order to make a formal oath on the Bible (or another holy text if preferred, and available) in front of a lawyer from another firm.

The fee had not increased since before I qualified in 1991 and has remained at £5 plus £2 for each ‘exhibit’ (i.e. accompanying document) for each person making an oath. Working out the VAT and income tax attributable to a fiver, made it a sum that I would ask the person taking an oath before me to donate direct to whatever charity box was on our reception desk, partly to save the administrative palaver.

Occasionally, I have come across people who prefer not to be sworn to an oath on the Bible, because they hold it to be too holy for the irreligious business of the law, such as members of the Plymouth Brethren or certain other sections of the Christian religion. Instead, people can make an Affidavit, which is an affirmed document with no religious element to the process. In either case the crime of perjury would be committed if an untruth were told: the theory was that making a false statement, when swearing to its truth with one’s hand resting on a holy text, would incur the wrath and retribution of ones God. I realise that I am entering delicate territory here, but the procedure had become an unsettling performance for a grieving widow or other family member and a waste of time and resources for the more practically-minded.

The law and the church almost completely separated themselves under Henry VIII and only a few charming anachronisms remain; they are slowly disappearing in the inevitable march of progress.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710 210. If you require advice on any other legal matter call 01328 863 231 or email law@hayes-storr.com.

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