Administration of justice update
Administration of justice update: probate fees U-turn and the road to victory
Emily Deane reports on the government’s decision to shelve the planned probate fees increase.1
About the author
Emily Deane TEP is Technical Counsel at the Society of Trust and Estate Practitioners (STEP).
In February 2016, the Ministry of Justice (MoJ) issued a consultation paper on reforms to the fee system for grants of probate.2 2 The paper proposed to increase radically the fee on a banded structure in accordance with the estate value, in some cases increasing the fee by 13,000% or £20,000 for larger estates (see Table below).
STEP strongly opposed the new system on the basis that the proposed fee would be completely disproportionate to the service provided by the probate court, and would, effectively, be a new tax on bereaved families.3 3 We raised concerns on the grounds of fairness, practicality and legality, in particular, that the new measures being introduced via the draft Non-Contentious Probate Fees Order 2017 may be ultra vires, ie, beyond the scope of the Order. The consultation was widely circulated, with over 97% of respondents opposing its proposals; then, the matter went quiet for almost a year.
On 24 February 2017, STEP received a bulletin from the MoJ that, subject to parliamentary approval, the new fee system would be implemented, just weeks away, in May 2017.
STEP obtained a legal opinion from Richard Drabble QC, who confirmed ‘the proposed Order would be outside the powers of the enabling Act’. While section 180 of the Anti-Social Behaviour, Crime and Policing Act 2014 provides the power to prescribe ‘reasonable’ fees, it is dubious whether the new system would be classified as a fee. The section also clearly stated
that the fee must be proportionate to the service provided by the probate court.
STEP sent the legal opinion to a handful of senior politicians in the House of Lords on 19 April 2017. On the same day, we discovered that the House of Commons Second Delegated Legislation Committee had rushed though the Non-Contentious Probate Fees Order 2017, meeting at 8.55 am, with no advance warning that it would be tabled that day.
The committee approved the Order going through by 10:2 despite some excellent arguments made by Yasmin Qureshi, Bolton South East MP. We understood that the Lords were due to discuss the matter on Monday 24 April, but were notified, on Thursday 20 April, that the proposal had been discarded and the new fee regime would not be implemented in May after all.
We suspect that the government was concerned that the proposals would be vulnerable to judicial review if they were implemented, as per Richard Drabble QC’s legal opinion.
The most recent bulletin received from the MoJ, on Friday 21 April, stated:
There is not enough time for the Statutory Instrument which would introduce the new fee structure to complete its passage through Parliament before it is dissolved ahead of the general election. This is now a matter for the next government.
We have since heard from senior sources in the Lords that the subject may resurface as primary legislation post-election, in which case the proposal would still need to be approved by both Houses of Parliament. We presume that the proposed fees system would be reintroduced as a new tax rather than as an increased fee.
STEP will continue to work closely with our members and other professionals and the media to increase awareness of this matter, although we sincerely hope that it will not re-emerge in a different format.
1 See ‘Administration of justice update: probates fees increase – will they or won’t they? (2017) May CILExJ pp26–27
2 Court fees: consultation on proposals to reform fees for grants of probate, available at: http://tinyurl.com/z8slds9
3 STEP comments on the consultation on fee proposals for grants of probate dated 18 February 2016 by the Ministry of Justice, available at: www.step.org/sites/default/files/STEP_Response_to_MOJ_probate_fee_ consultation_paper.pdf