Lords Committee criticises Government for disproportionate increase in probate fees

Every year around 270,000 estates apply for non-contentious probate –  that is authorisation to distribute a deceased person’s finances, property and assets according to their will.

Under the proposals in the Draft Non-Contentious Probate Fees Order 2018, from April 2019 the Government is proposing a sliding scale of probate fees based on the value of the estate, with seven-bands from zero to £6,000 – even though the current cost of the administration will drop slightly.

The Government first proposed a scale of fees rising to £20,000 for estates worth more than £2 million in 2017. At the time, the Committee argued that to charge a fee so far above the actual cost of the service amounted to a “stealth tax” and therefore a misuse of the fee-levying power. Those original regulations were not subsequently put forward for debate in the Lords.

Although, in this new version, the scale of the individual fees has been reduced, the Committee has not changed its view on the underlying principle, that is that the fee bears no relationship to the actual cost of approving the probate application and has the appearance of a tax.

Alongside the affirmative Order, the Ministry of Justice has also laid the Non-Contentious Probate (Amendment) Rules 2018 (SI 2018/1137), a negative instrument which modernises and improves the efficiency of the probate service and is welcomed by the Committee.

In its 6th Report published today, the Secondary Legislation Scrutiny’s Sub-Committee A said:

“That the draft Ministry of Justice Order seeks to increase these fees by so much at the same time as laying the Rules (SI 2018/1137) that will reduce the unit cost of an application by an average of £9.30, only serves to highlight the Committee’s concerns about the disproportionate increase in the fee levels proposed by the affirmative instrument.”

Notes to Editors

1. The original Draft Non-Contentious Probate Fees Order was brought to the attention of the House in the Committee’s 28th Report (session 2016-17) in March 2017. Read the report here.
    
2. The SLSC Committee considers every negative and affirmative Statutory Instrument (SI) laid before Parliament with a view to determining whether the special attention of the House should be drawn to it on grounds including that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House.
    
3. Secondary, or delegated, legislation is used to add information or make changes to an existing Act of Parliament (primary legislation). Normally, this can only happen if the Act itself states that changes can be made to it in this way.
    
4. Statutory instruments (SIs) are the most frequently used type of secondary legislation. They are typically brief documents drafted by the relevant government department that contain only the exact textual changes that are made to the legislation.
   
   Each Statutory Instrument must be published with an explanatory note that explains in simpler language, what the effect of the instrument will be. These notes are not primarily intended for legal experts, but members of the public who may not be familiar with SIs. To find an SI, the accompanying documents and what stage it is at in Parliament you may find it helpful to look at the SI Tracker on the parliamentary website  https://beta.parliament.uk/find-a-statutory-instrument