EW to extend online probate service

Daniel NesbittThe online system for England and Wales probate applications is to be extended further, after a Statutory Instrument was laid before the House of Lords last week.

The Non-Contentious Probate (Amendment) Rules 2019 updates previous legislation to allow solicitors and probate practitioners to apply for grants of probate without an invitation from a registry. It also modernises certain definitions, and corrects minor errors, in the Non-Contentious Probate Rules 1987.

As the legislation is a negative instrument, no vote has been scheduled to take place in parliament, so unless a motion to stop it is tabled within 40 days, it will automatically become law, and is due to come into force on 1 October 2019.

The full text of the Statutory Instrument, along with further explanatory information, can be found here: The Non-Contentious Probate (Amendment) Rules 2019 (PDF) .

The changes are unrelated to the government’s Non-Contentious Probate (Fees) Order 2018, which has still not been scheduled for a final vote in the House of Commons.

 

Daniel Nesbitt, Policy Executive, STEP

EW probate delays and disruption: an update

Emily Deane TEPSTEP met HM Courts & Tribunals Service (HMCTS) this week, together with The Law Society and Solicitors for the Elderly, to obtain an update on the delays and disruption to the Probate Service in England and Wales.

HMCTS gave us the following update on work undertaken since our last meeting on 14 May:

  • It has taken on 30 new staff since the transfer to the new system.
  • It currently has 180 employees working across the Probate Service.
  • It has recruited additional legal advisors with probate experience.
  • The registry with the most significant backlog is Winchester, which is sharing its work with other registries.
  • HMCTS is issuing approximately 20,000 grants a month, of which 12-13,000 are from practitioners
  • It is dealing with grants in date order, oldest first.
  • It does not prioritise grants according to urgency, and will not deal with applications more quickly by request.
  • It is entering caveats into the system on the day of receipt.
  • It will not refund probate fees due to delay.
  • It will issue grants of probate in approximately six to eight weeks.

STEP’s request for waived interest, or longer timeframe

STEP is aware that the delays are making it difficult for members to pay IHT on estates, since they cannot gain access to funds until the grants have been issued.

STEP has asked HMCTS to consult with HMRC on this issue, to see if it will waive the interest accrued on outstanding IHT, or permit a longer timeframe for paying by instalments. We stressed that this would help ease some of the time pressure and negligence concerns of our members, and generate some much-needed goodwill.

HMCTS anticipates that once its new digital system is up and running, there will be less scope for administrative and human error. Users will be able to track applications and make corrections online.

It will continue to accept paper applications for those less able to deal with applying online.

  • HMCTS is holding a webinar to demonstrate the new online system for professional users on 4 July.

STEP will be meeting HMCTS again in August for a further briefing.

Emily Deane TEP, STEP Technical Counsel

A welcome return to STEP Canada to attend the 21st National Conference

Canada student winnersIt was an absolute pleasure to be back in Toronto, Canada for the 21st National Conference, the STEP Canada Board meeting and AGM. I had visited in February, early in my tenure, given the importance of the region to STEP overall and to learn more about how we operate in different parts of the world.

I was joined on this trip by Simon Morgan TEP, our worldwide Chair and Jim Walkinshaw, COO Finance and HR, from the London office.

We met the Canada Board on the first day, and then attended the AGM and Board meeting. It was great to meet the incoming and outgoing board members and get the opportunity to update the Canada Board on what we are working on in the worldwide office to further the vision and mission of the society.

In the evening we moved on to a reception which included Simon Morgan and STEP Vice Chair Nancy Golding TEP presenting Prof Albert Oosterhoff with Honorary Membership of STEP. Prof Oosterhoff became the second Canadian to receive such an honour and is one of only 11 worldwide.

The next morning saw the conference open and 784 delegates converge on the Metro Toronto Conference Centre. After the formalities, we were into the first session of the day with Richard Hay TEP leading us through a masterclass thought-leader piece on the effects of globalisation on the tax collection of nation states. The question of whether we could be headed toward a central taxing authority that imposes globally-coordinated taxation may not be so far-fetched; how would we have reacted to the current disclosure rules ten or 15 years ago?

Alongside the many important technical sessions the two other stand-out pieces for me (as a non-practitioner) were the lunchtime sessions. On Thursday we listened to S Jay Olshansky from the University of Illinois looking at ageing and longevity; some of the ‘markers’ for that were surprisingly basic, eg the younger you look, the older you tend to live, and what impact that should have on planning for future health and finances. On Friday we had the equally thought-provoking Caron Croland Yanis sharing her experiences on the intersection of family values, sustainable governance and technical compliance in philanthropy.

Before heading off to dinner we were delighted to attend the Student Awards ceremony where the latest winners were recognised (pictured). I always enjoy these type of events and getting to meet the brightest of the new professionals coming through, and I’m confident that we saw some of the future leaders of the profession. Dinner that evening had to be the networking and social highlight of the two days – held at Arcadian Court, an historic and impressive art deco event space.

For me the barometer of a conference’s success is how many people are still actively engaged at the end of the event – and STEP Canada certainly set the bar high by having a varied and well thought-through programme that kept most of the delegates through to the final sessions.

It certainly met our mission statements of promoting high professional standards, educating professionals and connecting advisors. As ever with these events, the eventual success sits deep in the planning, and I saw first-hand during my visit back in February how detailed, focused and accountable that planning was. Based on that, the event was always going to a success!

Altogether it was a very informative and enjoyable few days. I genuinely learned lots, I have seen content and formats that we can use, and/ or adapt for the Global Congress in Dublin next year, and the networking was outstanding.

Huge congratulations go out to the whole STEP Canada conference programme committee led by Corina Weigl TEP (Chair), Brian Cohen TEP and Richard Niedermayer TEP (Co Deputy Chairs) and the fabulous staff team led by Michael Dodick and Janis Armstrong. What a formidable force to have behind the biggest conference event in the STEP calendar.

It’s always interesting to see what other conferences are on in a major venue. As I arrived in Toronto the hotel and centre was full of body builders at the 2019 Toronto Pro Supershow and EXPO, and as we left the cannabis industry had moved in for the 2019 Toronto Cannabis EXPO – it’s a booming market after it was legalised last year…

Mark Walley is CEO of STEP

What can you do to improve employee engagement?

Christopher TaliaWe all know that employee engagement is important, but that doesn’t mean it’s easy to get right. Next month’s STEP Employer Partnership Programme (EPP) Summer Forum will look at this key area, and help you devise a strategy that works for your organisation.

Employee engagement can mean different things to different people. Some will see it as recognition, others as financial reward. No matter how you view it, employee engagement holds three distinctive characteristics: realising employee potential; clear and shared organisational goals; and promoting employee wellbeing.

Many organisations fall short of achieving one, or all of these factors, leaving employees feeling under-appreciated, and in turn, unwilling to perform at their full potential. So how can employers bridge the ‘employee engagement’ gap while ensuring business success?

The forum, Employee engagement: boosting employee capability and potential for business success, will be hosted by Platinum Employer Partner RSM, and will share valuable insights from the following industry practitioners:

All our speakers have substantial experience in different jurisdictions including Guernsey, Jersey, Switzerland and the UK. Each will share her own experiences, strategies and learning on how they have successfully developed and implemented programmes to support employee engagement.

Key topics will include: what employee engagement means, understanding flexibility in the workplace and understanding gender diversity and inclusion.

If you have ever wanted to know how you can increase both your employees’ potential and their engagement levels, then this is the forum for you. I look forward to seeing you there to learn more about employee engagement.

Christopher Talia, Programme Manager, Employer Partnership Programme, STEP (Christopher will officially join the EPP team from mid-July).

STEP meets HMCTS to discuss EW probate delays

Emily Deane TEPSTEP met HM Courts & Tribunals Service (HMCTS) this week to discuss the backlog of applications and continued disruption to the Probate Service.

HMCTS representatives explained its old database needed to be upgraded, which had prompted the decision to move to digital software. The new system was scheduled to go live in January but was delayed until 25 March following technical glitches. HMCTS explained that it had not anticipated this level of issues with the technology, in conjunction with such a high spike in probate applications.

The following points were raised:

  • HMCTS has brought in 15-20 more people for the national office; a 10-15 per cent increase in those working on the backlogged applications.
  • The remaining probate registries will be closed over the next 12 months. Staff will be given six months’ notice and HMCTS expects to help them all find other roles in the civil service.
  • The new digital system is being delivered from the Courts and Tribunals Service centre based in Birmingham. HMCTS is keen to get more solicitors using the digital pilot, and will be looking for volunteers shortly. This pilot will enable solicitors to issue up to 250 applications per week.
  • Cases are taking up to 30 working days to be processed at the moment.
  • The Probate Registry will publish regular bulletins to improve communication with the public.
  • HMCTS assures users its existing Registry staff are working hard to get through the applications, and issued 960 grants on a single day this week.
  • HMCTS requests users not to chase applications, as they are being dealt with by date order.
  • HMCTS is currently up to date with caveats.

STEP expressed its disappointment that the court service was not better equipped to deal with the spike in applications. The Ministry of Justice had issued reassurances earlier this year that the court service was prepared for an increase due to the proposed increase in probate fees. STEP noted HMCTS was ill prepared to merge the new online system, change the format of the certificate, close registries and cut staff all at once. 

STEP repeated its suggestion that HMCTS should change the fee implementation date to the date of death for applications, to relieve the pressure and generate some goodwill amongst the industry and the public. The idea should be seriously considered, given pressure on practitioners and members of the public is considerable, and is causing a great deal of anxiety. 

STEP has also provided feedback to HMCTS on errors in the new-style grants that members have received, together with feedback on how they could be improved. We have explained why the will should continue to be annexed to the grant of probate, and the difficulties caused if it is not.

The Statutory Instrument to increase probate fees is still waiting to be scheduled for approval in parliament, and we will continue to monitor and report any developments (latest update).

Emily Deane TEP, STEP Technical Counsel

What’s happening with the EW probate fees order?

Daniel Nesbitt

Update 18 July: The probate fees order has not been scheduled for debate in the week commencing 22 July. As this will be the final week before the UK Parliament rises for its summer recess, and the end of the parliamentary session, the order cannot now be debated or passed until parliament returns on 3 September 2019.

Original blog: The status of the EW probate fee order is the same as it has been since February – it is still waiting for its final stage. As it was not scheduled for debate next week, ie w/c 13 May, it will not be possible to bring the new fees in before June.

Following last week’s Business Questions (where the future parliamentary business is set out) there has been a slight change of tone from the government on scheduling the order. In answer to a question, the Leader of the House of Commons, Andrea Leadsom, said the order had already been debated in committee and an approval motion would be brought in due course. Previously she had said ‘where a reasonable request for a debate has been made, time should be allowed for that debate’.

This may mean the government will actively try to avoid a full debate in the House of Commons. Labour seems keen to bring it to a vote and has raised it at a few business questions.

Parliament is due to have its Whitsun Recess from 23 May to 4 June 2019, so that will further limit opportunities to bring the order to the House of Commons. The summer recess date has not yet been announced and will likely depend on the Brexit negotiations, and whether a deal can be passed (the last two summer recesses have started in late July, which may be a guide).

The summer recess will mark the end of the parliamentary session, and whilst secondary legislation not passed before this point is usually abandoned it can be brought back in the following session.  

There are rumours that Theresa May is not planning to hold a substantive Queen’s Speech at the opening of the next session, which would mean there would only be a limited programme of legislation for the government and it would be easier to find time to fit it back in. However, the government may try to bring the order to its final stage before the summer recess.

Daniel Nesbitt, Policy Executive, STEP 

5AMLD consultation: STEP’s view

Emily Deane TEP

The UK Treasury has published a consultation paper on the transposition of the EU’s Fifth Anti-Money Laundering Directive (5AMLD), which expands upon the scope of registration for trusts and widens the accessibility provisions to the beneficial ownership records. The 5AMLD Directive provides for public access, but it is up to each Member State to decide whether or not they will restrict this.

Express trusts

5AMLD will require that all UK express trusts register with HMRC, not just those with UK tax consequences (as was the case with 4AMLD). It will also bring into scope non-EU resident trusts that own UK land or property. STEP is concerned that under 5AMLD, a much wider range of trusts will need to be registered. Express trusts may include co-ownership of land, insurance trusts and other dormant trusts, which will significantly enhance the number of trusts that need to be reported. The consultation seeks to clarify the definition of express trusts, which we hope will provide some clarity and narrow the scope.

Access to the register

There will be expanded accessibility provisions. In the UK, the records will be accessible by law enforcement agencies, any UK obliged entity that enters into a business relationship with a trust, and anyone who can show that they have a ‘legitimate interest’ in the data. An exception is that if a trust has a ‘controlling interest’ in a non-EU company, then anyone will be able to access the information by making a written request and no legitimate interest is required. A trust will be deemed to hold a controlling interest in any corporate or other legal entity when the trust has 25 per cent or more of either the voting shares or other means of control over that entity as defined in the Persons with Significant Control (PSC) guidance. It is currently unclear how legitimate interest applications will be dealt with by the government since ‘legitimate interest’ is not defined within 5AMLD.

Legitimate interest

The government will need to decide whether or not requests for trust data meet the definition of legitimate interest. The current train of thought is that those with legitimate interest should be limited to people with active involvement in anti-money laundering or counter-terrorist financing activity, or those who have reason to believe or evidence that a particular trust or person is involved with money laundering or terrorist financing.

We hope that the government will require strong evidence of illegality and/or wrongdoing that clearly implicates the trust concerned before agreeing to consider a legitimate interest application. There are many people who seek to obtain confidential information about individuals and families with wealth for purposes other than the exposure of illegality or wrongdoing. People are often keen to obtain information about the affairs of the wealthy and those in the public domain, for example, and we are concerned that vague assertions of impropriety could be used to obtain confidential information about family trusts.

The consultation does, however, acknowledge that many trusts are used for children and vulnerable adults, and requests for personal information on either of these will be given ‘special consideration’ and will possibly even be withheld, which we fully endorse.

Registration deadlines

For trusts already in existence on 10 March 2020, the government proposes a deadline of 31 March 2021 for them to register. This gives a long lead-in time, given the greater number of trusts that will need to be registered.

For trusts created on or after 1 April 2020, the government proposes that the trust should be registered within 30 days of its creation. The government envisages that this approach will be the most straightforward, as registration can occur as part of the set-up process, when the required details should be readily available to trustees/agents. The proposal for registration within 30 days for new trusts means there is no single deadline each year and it seems sensible for the trust to be registered at the same time it is created.

It is also intended that this 30-day deadline will be used for any amendments that need to be made to the trust register data, for example, to update an address or change a trustee.

Penalties

Due to the fact that 5AMLD extends registration to non-taxpaying trusts, the government considers that the self-assessment penalty regime is not a suitable basis for the 5AMLD penalty framework. The new regime is also being consulted on within the paper.

STEP will be submitting a response to the consultation, which closes on 10 June 2019. The transposition deadline is December 2019, with an implementation deadline of January 2020. There is an extended trust register deadline for the UK of March 2020.

Emily Deane TEP is STEP Technical Counsel

HMRC’s five traps to avoid with CRS/FATCA reporting

Emily Deane TEPHMRC has identified the most common errors made by financial institutions (FIs) when filing their Automatic Exchange of Information (AEOI) returns, which include Common Reporting Standard (CRS) and Foreign Account Tax Compliance Act (FATCA) reportable information.

1. The FI misunderstands what constitutes an undocumented account

FIs are wrongly reporting accounts as ‘undocumented’ on the basis that a self-certification requested from an account holder has not been completed.

Accounts should only be reported as undocumented where they meet specific criteria, which include that the account has either a hold-mail instruction or a ‘care-of’ address. The full criteria can be found in CRS, Section III: Due Diligence for Preexisting Individual Accounts, subparagraphs B(5) and C(5). HMRC guidance is available at IEIM402850 and IEIM403040.

Any accounts that are correctly reported as ‘undocumented’ must show Great Britain as the residential country code.

2. The FI misunderstands what information is required to be reported 

Some FIs only complete the mandatory fields in the schema or portal, even though they hold additional information which is legally required to be reported. In addition, some FIs fill in mandatory fields with ‘n/a’ or similar.

CRS and the UK-US FATCA Intergovernmental Agreement (IGA) state which information is required to be reported. Where a schema or portal field is not mandatory, there can still be a legal requirement to provide this information. For example, where a Taxpayer Identification Number (TIN) or date of birth is held or obtained by the FI, it is required to be reported even though it is not down as a mandatory field within the portal or schema. Where an address is held, the full address must be provided, even though the only mandatory field is for ‘city’ in the schema or portal.

3. The FI reports accounts held by persons who are not reportable persons

FIs are reporting publicly traded corporations, as well as related entities, governmental entities, international organisations, central banks, and financial institutions. In most cases, such accounts are not reportable. HMRC guidance at IEIM402010 outlines which accounts are not reportable.

4. The FI misreports joint accounts and/or partnership account

Some FIs confuse the treatment of joint individual accounts and partnership accounts.

Joint individual accounts must be reported as individual accounts with the entire balance or value of the account, as well as the entire amounts paid or credited, attributed to each holder of the account.

A partnership is defined as an entity for reporting purposes, and accounts held by partnerships should be reported as entity accounts, with the respective due diligence and reporting requirements applied.

5. The FI reports entities as controlling persons 

Some FIs report entities as the controlling persons of entity accounts, resulting in trusts and companies being reported as controlling persons. However, entities cannot be controlling persons; under CRS and FATCA, ‘controlling persons’ means‘natural persons who exercise control over an entity. In the case of a trust, such term means the settlor, the trustees, the protector (if any), the beneficiaries or class of beneficiaries, and any other natural person exercising ultimate effective control over the trust, and in the case of a legal arrangement other than a trust, such term means persons in equivalent or similar positions. The term ‘Controlling Persons’ shall be interpreted in a manner consistent with the Recommendations of the Financial Action Task Force.’

Full HMRC guidance on AEOI reporting can be found at: International Exchange of Information Manual.

Please email Emily.Deane@step.org with any further queries.

Emily Deane TEP is STEP Technical Counsel

How to win a STEP Private Client Award 2019/20

John Barnett TEPEntries are open for the 2019/20 STEP Private Client Awards until 30 April. The Awards are widely acknowledged as being the premier event in the private client industry calendar. Winning an Award is a very clear and recognised hallmark of excellence.

How then, do you go about winning an Award? John Barnett TEP, Chair of the Presiding Judges, gives us his top tips based on his personal experience over the last three years on the judging panel.

Don’t be scared to enter

There can sometimes be a perception that the Awards are only for larger firms or for the usual London suspects. However, the judges have clear instructions to make allowance for smaller entrants and to take cultural differences into account for international entries. Last year’s entrants and winners were the most international yet. Entries from all sizes and types of firm are therefore welcome. Strong entries will always attract attention from the judges, from wherever they originate.

Enter the right category

It is a constant surprise to the judges how many firms enter the wrong category. One submission even began with the bold statement: ‘We are a leading [another category entirely] firm…’. Read the category criteria carefully, and if you think the judges might have difficulty understanding why you are applying for a particular category, help them by explaining your business better.

Put yourself in the mind of the judges

My number-one tip, when writing your submission, is to imagine yourself as one of the judges.

Be aware that most of the judges will not know most of the applicants. If they do, then all the better – judges are encouraged to bring their personal knowledge to the process – but for the most part, judges will be relying heavily on the submission. So even if you think you are the best-known firm in the world, make your submission count.

Each judge will, at the shortlisting stage, have to review up to 100 submissions, each of up to 1,100 words. They will then do the same again at the finalist stage. Judges have to mark each submission against five criteria and write at least 50 words about each one. That is 220,000 words of reading, 1,000 scores to give out, and at least 10,000 words to write. It is an awful lot of work: first time around, I took a week’s holiday to do the process justice. With this in mind…

Answer the questions

It is the first rule of exam-technique we should all have learned at school, but every year I am amazed at how many submissions do not answer the question. There are five criteria for each award. Each of the criteria is weighted equally and we score each out of five. So answer the questions and pick up the easy marks. Don’t waste half of your words on criteria where you have already scored 5/5 and then fail to say anything at all in response to others.

Further, make sure that you clearly answer each of the criteria in turn. If instead you give a general narrative answer, even if it addresses all the criteria, judges aren’t going to thank you for having to read it several times in order to extract and mark each one. Make the judges’ lives easier and they are likely to mark you more highly.

Don’t waste word-count

You have 1,100 words. Make them all count. So many submissions waste words. Précis rigorously. Then do so again.

A favourite example from a few years’ ago: ‘We acted for an elderly lady of great age in relation to her complex affairs. She…’ 16 words (1.5 per cent of your total) when ‘An elderly client…’ would have done just as well.

Avoid the marketing spiel!

You will be judged by fellow senior industry professionals who can spot flannel and hyperbole from a long way off.

In response to the question ‘what makes you different?’ a particular bugbear of mine is an answer that says: ‘Putting the client at the heart of everything we do is our USP and in our DNA’. If this really makes you different, why have I read something similar in 50 other submissions?

Most of the work in our industry is advisory. The ability to communicate clearly with clients is crucial to this. So demonstrate your ability to give clear advice, with a clear and well-written submission. If your marketing team is superb, then by all means use them. The judges’ experience, though, is that submissions written by those at the coal-face often read more convincingly.

Pay attention to spelling and grammar, and beware unnecessary adverbs and superlatives.

Big numbers (and names) are irrelevant

Many submissions make great play of the financial value of their clients or cases. Others seek reflected glory in acting for big names. Yet both of these have almost no effect on the judges. Tell us what makes your case unusual, complex or novel. Don’t simply name-drop celebrity connections.

Provide evidence; don’t merely assert

Most criteria ask you to ‘demonstrate’ or ‘provide evidence’. Yet many submissions assert things – ‘We are the leading firm providing a superlative level of client-service and exceptional satisfaction’ – without any evidence to back this up.

What will go down well is an evidence-based entry that gives clear examples of what the firm has done over the past year to make it stand out from the crowd.

Entries should be particularly careful about unguarded assertions. ‘We are the only firm that can…’ or ‘We are the largest firm which…’ are particularly dangerous assertions – especially where some of the judges might work for a competitor and dispute whether this is true.

Tell us something unusual

A good answer for each of the criteria might get you shortlisted. But if you want to win, you will need to stand out.

Tell the judges something different, something unusual, something genuinely innovative. Think forward to the awards ceremony and the announcement of the winner. When the celebrity-host says: ‘The judges were particularly impressed by…’, what one facet of your submission will the judges have chosen?

Be consistent

The judges are both curious and cynical in equal measure. They will check what you say in your submission against what you say on your website and other sources of information. Glaring inconsistencies tend to result in entries receiving short shrift.

Remember the Awards are ‘….of the Year’

Your firm will obviously be very good at what it does, but the Awards are intended to highlight those that have achieved particular success over the past year. Make sure you are rigorous in only referring to evidence from 1 May 2018 to 30 April 2019. General statements about historic successes will waste words and not score any marks.

….and finally, good luck!

The judges look forward to having a harder job this year, with many well-written submissions to choose from!

John Barnett CTA (Fellow) TEP is a Partner at Burges Salmon, Bristol.

England & Wales probate fees: an update

flowersThis Blog will be updated with developments on the Non-Contentious Probate Fees Order 2018 as they occur.

Background and details on the proposals, including the fee structure, can be found here.

10 May 2019: What’s happening with the Probate Fees order?

7 February 2019:

A House of Commons Delegated Legislation Committee has voted 9 to 8 in favour of progressing the draft Non-Contentious Probate (Fees) Order 2018 to the Commons for approval.

Lucy Frazer MP, the Minister responsible for the legislation, confirmed during her speech that the changes will be introduced in April (date yet to be confirmed) and that guidance on how to pay fees will be published before the changes take effect.

The next stage is for the Order to go to the House of Commons for approval. The date for this has not yet been announced.

31 January 2019:

Probate fees due to go before House of Commons Delegated Legislation Committee on 7 February at 11.30am (more information).

Background notes

The Committee’s role is to debate the merits of the statutory instrument, instead of an extended debate in the House of Commons itself.

The proceeding will effectively be like a miniature session of the House of Commons (Lucy Frazer MP will speak as the minister responsible and then the Opposition spokesperson, followed by backbenchers). The Committee cannot block the measure from proceeding to a vote in the House of Commons, but at the end of the debate it will vote on whether the Committee has considered the Instrument. Other MPs can speak, but only those on the Committee will be able to vote at the end.

Once it has cleared this stage the instrument goes to the House of Commons for a vote soon afterwards, in this case, probably the following week.

9 January 2019:

STEP received a reply to a letter to Lucy Frazer QC MP, the Parliamentary Under-Secretary for Justice and Minister responsible for the Non-Contentious Probate Fees Order 2018, which set out our concerns with the proposed changes. The reply restated the government’s rationale for introducing the measure and refuted the assertion that it represented a tax rather than a fee covering the cost of a service. You can read the full reply here.

18 December 2018:

The Non-Contentious Probate Fees Order 2018 was debated in the House of Lords on 18 December 2018. As an affirmative measure it required a majority to pass. The House stopped short of rejecting the Order, but put on record its concerns, with the following Motion to Regret moved by Lord Beecham:

‘This House regrets that the draft Order will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Anti-social Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’

The next stage for the Non-Contentious Probate Fees Order 2018 is to be scrutinised by a House of Commons Delegated Legislation Committee. No date has been set for this and it will depend on other business in front of MPs. STEP will continue to monitor the situation and provide updates where appropriate.

6 December 2018:

The Joint Committee on Statutory Instruments scrutinised the Non-Contentious Probate (Fees) Order 2018 (see the Fortieth Report of Session 2017–19 (PDF)) and drew it to parliament’s special attention:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act’

The other committee tasked with examining secondary legislation, the House of Lords Secondary Legislation Scrutiny Committee, in the 6th Report of Session 2017–19 (PDF) also drew parliament’s attention to the measure, calling it a ‘stealth tax’.

More detail on these developments can be found here.

Daniel Nesbitt, Policy Executive, STEP