The Ministry of Justice recently provoked consternation with news that it would introduce a massive hike in probate fees for those estates valued over £50,000. Currently the fee is £155 (if grant of probate is obtained through a solicitor) or £210 (if an individual applies).
However, with the increase in place, fees will range from £300 to a whopping £20,000, with the higher sum applicable for estates valued at £2 million or over and, depressingly, the Government Response to the consultation on fee reform makes clear what the real reason is for the proposed increases: "a properly funded courts and tribunals service".
Effectively, this means that the probate fee increases will fund the Courts and Tribunals Service. This explains why the reformed fee structure has zero correlation between the amount of work involved in applying for a grant of probate and the actual cost of doing so.
There has been vocal opposition from those within the legal community, with the fee increases being cited, variously, as a "death tax", "stealth tax" and "grave-robbing". An online petition, calling for the Government "To reconsider the proposed significant and unreasonable increase in probate fees", has gathered well over 36,000 signatures (and rising). Additionally, there have been numerous media articles and comments from lawyers condemning the increases. It is fair to say that the announcement has not been met with enthusiasm from anyone.
A recent meeting of the Joint Committee for Statutory Instruments (which is comprised of both Peers and MPs) produced a report into the reforms. It stated:
"The Committee is doubtful whether section 180 of the Antisocial Behaviour, Crime and Policing Act 2014 does in express words entrust the Lord Chancellor with the power to impose charges of the magnitude proposed by the draft Order and for the purposes connected with her department specified in the explanatory memorandum".
Furthermore, the Committee went on to state:
"The Lord Chancellor is not permitted to impose a tax. Therefore, despite the arguments put forward by the Ministry of Justice, the Committee has a real doubt as to whether the Lord Chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services which executors do not seek to use – namely those provided by courts and tribunals dealing with litigation. Applying for probate is not to be compared with the commencement of proceedings. A person can choose whether to litigate, and therefore whether to incur the fees payable on issuing a claim – which may be recoverable from the defendant if the case succeeds. In contrast, executors have to obtain probate to allow them to administer an estate, and the fee for doing so is not refundable. This is an administrative process, akin to the registration of a life event. Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation. That makes it difficult for the Committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system."
So, what would make such an exorbitant increase in court fees "unlawful"? We would need to look carefully at section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. This section gives the Lord Chancellor the power to increase court fees as a statutory instrument, meaning that in order to be enacted the reasons for the change do not need to be heard before parliament nor gain the approval of both Houses.
It is further made clear that a statutory instrument which sets a fee in excess of the cost of anything in respect of which the fee is charged may not be made unless a draft of the instrument has been laid before both Houses of Parliament and approved by a resolution of each House; in contrast, where a proposed court fee increase as a statutory instrument "only adjusts a fee to reflect changes in the value of money" Parliamentary approval isn't required.
The Joint Committee seems to not be convinced that the fee increases are justified and appears to view them as a taxation:
"The charges provided for in paragraph 1 of Schedule 1 to the draft Order appear to the Committee to have the hallmarks of taxes rather than fees, particularly in view of the amounts that would payable for larger estates and the scale of the proposed increases (from £155 to as much as £20,000 – a rise of nearly 13,000%) – and because the charges are disproportionate to the service provided by the Probate Registry. It is an important constitutional principle that there is no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms."
The Ministry of Justice is unrepentant however, and plans to apply the changes early next month, although no confirmed date for the implementation has yet been announced. Practitioners however are working to an implementation date of May 1.
The only people who would benefit from the fee increases are the Ministry of Justice as it tries to plug a massive hole in the funding of the over-used Courts and Tribunals System. The move, unfortunately, constitutes little less than an affront to grieving families who soon will be forced to hand over thousands of pounds for a straightforward application to deal with the affairs of the deceased.
Death is certain; however, the fee increases now look slightly less certain than they did last week.
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