The short answer to that question is . . . not yet.

In November’s newsletter, I wrote an article warning that the Government was about to bring in a massive increase to the fees charged to obtain probate.

The proposed changes will increase probate court fees from the current cost of £215 (or £155 if using a solicitor) to a sliding scale of fees ranging from £250 to £6,000 depending on the value of the deceased’s estate. This is set out in detail in my November article.

Ministers have been careful to describe the change as an “enhanced fee” rather than a tax, because the latter would require a commons debate and a vote to become law. By classing it as a fee, the Government is able to implement changes by using a “Statutory Instrument”, which is a secondary form of legislation that does not require a vote.

The Statutory Instrument concerned is called The Non-Contentious Probate (Fees) Order 2018, and it is poised to reach the House of Commons at any time in the coming weeks.

The fee changes will definitely not, however, be coming into force on 6 April 2019. This is because a Statutory Instrument has a 21-day notice period from when it is passed by the Government to the date it actually comes into effect. As this Statutory Instrument has not yet been passed by the Government, it cannot come into force at the beginning of April because there are not enough days now to fulfil the 21-day notice period.

My successor as chair of the Law Society’s Wills & Equity Committee, Ian Bond, recently wrote an article on this for the Law Society’s Gazette, and I have replicated some of his excellent material in this article.

Like Ian, I remember well Chris Grayling’s time as Lord Chancellor, as he was the first person to be appointed to that role who was not a solicitor. It was his decision in May 2013 to reject the Legal Services Board’s recommendation to make will-writing a reserved legal activity under the Legal Services Act 2007.

Similarly, I had not previously been aware that Chris Grayling was also the driving force behind the Anti-Social Behaviour, Crime and Policing Act 2014. I had no idea what this piece of legislation contained until 2016, when the Government consulted on a new probate court fee structure, based on value of the deceased’s estate.

The Government used Section 180 of the Anti-Social Behaviour, Crime and Policing Act 2014 to bring forward the Non-Contentious Probate (Fees) Order 2018.

Whenever questions were raised about using Section 180 to increase fees, general responses usually involved litigants paying for court services, with no reference in the parliamentary records of this section ever being discussed in the context of probate fees.

There was a consultation in 2016 on proposals to reform probate fees. But the vast majority of the respondents, which included the Law Society and other experts, disagreed with the proposals arguing, among other things, that the size of the fee should not exceed the cost of delivering the service.

The cost to the Probate Registry of issuing a grant of probate is the same regardless of the value of the deceased’s estate. The estate could be worth £50,000 or £50,000,000; the task of the Probate Registry is the same – effectively attaching a court seal to one piece of paper where the deceased left no will, and attaching a sealed copy of the will to that piece of paper in cases where the deceased did leave a will.

An application for a grant of probate is far removed from any form of litigation. The single sheet of paper recounts facts about the deceased person and is produced with little or no scrutiny by a small division of a government department. Asking those who have larger estates to pay higher fees is therefore nothing more than a stealth tax.

A draft Order was issued in 2017 to implement the Government’s proposals. Due to the general election, there was not enough time for the order to complete its passage through parliament.

The draft Order was heavily criticised and many hoped (myself included) that the proposals would remain in the long grass. But it was not to be. In November 2018, a new draft Order was laid before parliament, albeit with lower fee increases to try and sweeten the pill.

The 2018 order passed through the House of Lords with a statement of regret attached to it. It then scraped through the secondary legislation scrutiny committee with 9 votes in favour and 8 votes against . The committee said that the fee increases arguably amounted to a stealth tax and could therefore be a misuse of the fee-levying power under Section 180.

The Law Society has organised a campaign to encourage members of the legal profession to contact their MP objecting to the proposals. It stands against the 2018 order because families of the recently deceased who apply for probate will end up paying a tax which covers the entire annual shortfall of the family and civil courts, and potentially other tribunals.

This is not what the provisions of the act were intended for. The bereaved are not litigants pursuing multi-million pound cases through the courts but ordinary people who need to obtain a grant of probate to deal with the affairs of their loved one and this is not the way to fund justice.

The Institute of Legacy Management also opposes the fee increases, because it believes the proposed changes could cost charities £10m a year in legacy income.

The ILM is one of four organisations in the charity sector that is campaigning for a reduced or discounted rate on probate fees for estates that include legacy gifts to charities.

Get in Touch

If you are concerned about the proposed new fees, or would like to talk to someone at Barrett & Co about obtaining probate generally, then please contact either Hilary Buckle or Jane Whitfield for further information on 0118 958 9711 or by emailing either of them at [email protected] or [email protected].

Further Reading:

Massive hike in probate court fees condemned as “stealth” taxes

Inheritance Act claims and Contested Probate

The Family Court – The Domestic Abuse Bill

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