21 April 2017

Reprieve on increase to probate fees?

Alison Elwess, senior solicitor, looks at today's announcement that the controversial plans to raise the legal fees (Probate) payable after death are to be scrapped ahead of the general election.

On Wednesday 19 April, the government’s controversial plans to increase Probate fees dramatically (from the current flat rate fee of £155 for solicitor applications or £215 for personal applications by executors, to as much as £20,000 for estates worth over £2million) cleared a further hurdle in Parliament, when the draft Non-Contentious Probate Fees Order 2017 was passed by the Second Delegated Legislation Committee.

The draft Order faced opposition in committee, with Yasmin Qureshi MP citing a Royal London Freedom of Information request that revealed the Ministry of Justice (MOJ) could provide no evidence that higher value estates cost the Probate Registry any more to process than estates of modest value to justify charging a vastly increased fee to issue a grant of probate in those cases. In speaking against the measure, she referred to the proposed fee structure as a ‘form of taxation by the back door’ adding, ‘We need probate fees that are clear and fair, and that do not treat grieving families as cash cows for the Government.’

The proposals have previously been criticised by the House of Commons Joint Committee on Statutory Instruments, which expressed concern that the MOJ was exceeding the powers granted to it in the Anti-social Behaviour, Crime and Policing Act 2014 by seeking to raise fees in this way. This view is supported by public law expert, barrister Richard Drabble QC, who has stated that ‘the proposed order would be outside the powers of the enabling act.’

The BBC is now reporting (Friday 21 April) that the plans will be dropped by the Ministry of Justice due to lack of Parliamentary time before the forthcoming General Election, so it appears that the increased fees which had been due to take effect some time in May will not now be introduced in the immediate future after all.

However, it remains unclear, if the Conservatives form the next government, whether the plans will be resurrected following the election.

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